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December 14, 1979


No. 191 October Term, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, No. 78-05-1544-1550.

Before Cercone, P.j., Watkins and Lipez, JJ. Lipez, J. concurs in the result.

Per Curiam:

Judgment of sentence affirmed on the able opinion of Judge Durham of the court below, a copy of which is attached hereto.

Lipez. J. concurs in the result.





The defendant, Leavearne Miller, was indicted on Bills of Information No. 1544, charging carrying firearms on a public street and without a license, No. 1545, charging simple and aggravated assault; No. 1546, charging criminal conspiracy; Nos. 1547 and 1548, charging robbery; No. 1549, charging possession of an instrument of crime generally, possession of an instrument of crime, weapon, and possession of a prohibited offensive weapon; and No. 1550, charging recklessly endangering another person and terroristic threats.

Argument on a motion to sever the defendant's case from his co-defendants' cases was heard before the Honorable William M. Marutani on June 27, 1978. That motion was denied. A motion to suppress the identification of the defendant was heard by this Court on October 23 and 24, 1978 and was also denied. The defendant, along with co-defendants Larry Fields and Nathaniel Turner, was tried before this Court, sitting without a jury, on October 27 and 30, 1978. The Court sustained a demurrer on Bill No. 1544, charging carrying firearms on the public streets and without a license. The Court found the defendant guilty on all other Bills. A presentence and psychiatric report were ordered. Post trial motions were filed, and the Court heard argument on said motions on January 23, 1979 and denied them. The defendant was sentenced to not less than eleven and one-half months nor more than twenty-three months on Bill Nos. 1545, 1547 and 1548 to run concurrently. On Bill No. 1546, the defendant was sentenced to five years probation to run consecutively to the sentences on Bill Nos. 1545, 1547 and 1548. Sentence on the other Bills was suspended.

The following facts were established at trial:

On May 8, 1978, sometime between 1:30 and 2:00 P.M., Esther and Benjamin Gelman were working in their grocery store, located at 25th and Master Streets. Esther Gelman was standing by the cash register in the front of the store. A young man came in, walked up and down the aisles locking around, and then left. He appeared to be carrying a gun. (N.T. 34,41). A few minutes later, three men, identified by Mrs. Gelman as Nathaniel Turner, Leavearne Miller and Larry Fields, entered the store. Turner, who was holding a gun, approached Mrs. Gelman and told her to lie down on the floor. When she didn't move fast enough, Turner pushed her down with his foot and she struck her side against a cigarette rack. (N.T. 35-36). Turner attempted to open the cash register, and when he could not open it, he directed Mrs. Gelman to open it. As she stood up, she saw Leavearne Miller with her husband in the back of the store. Willer was pointing a shotgun at Mr. Celman and telling him to lie down on the floor. (N.T/. 37-38). The third man, harry Fledds, was sitting on a chair in the store, watching the door. (N.T. 38).

In the meantime, Mrs. Gelman had managed to push a silent alarm. Turner took the money out of the register and placed it into a yellow plastic shoe bag. (N.T. 43). He warned the others that an alarm has been sounded, and they all ran out of the store. The fourth man, who had walked into the store and looked around prior to the robbery, was standing outside the store, and he also ran away. (N.T. 41).

Officer Anthony Morina, Badge No. 5704, arrived at the scene of the crime almost immediately thereafter. Esther Gelman told him that she was held up by three Negro males and she gave a quick description of them which he broadcasted over police radio. Officer John Clark, Badge No. 4636, was on mounted patrol at the time and located near the 2500 block of Girard Avenue, which was two blocks from the scene of the robbery. After Officer Clark hear the description of the suspects over the radio, he observed the defendant, Nathaniel Turner, who fit the description of one of the robbery suspects, running toward a car parked in a gas station lot at 26th Street and Girard Avenue. Turner got into the car, which already had three passengers, and the car headed East on Girard Avenue. Clark pursued the vehicle, which turned right on 26th Street. The vehicle then began to back up at a high rate of speed toward the officer and his horse. The officer got out of the path of the car, which then turned around and drove back down Girard Avenue and crashed into a wall. The males then jumped out of the car and filed.

Meanwhile, other police officers arrived on the scene. Officer Clark directed them to apprehend the fleeing males. Clark arrested the defendants, Miller and Fields in a bar. Officer Gcorge Mimmer Badge No. 2816, arrested the defendant Turner at the direction of Officer Clark. Detective James McCarty, Badge No. 886, searched Turner incident to his arrest and recovered $34,39 contained in a yellow plastic shoe bag. After the defendants were arrested, they were returned to the store where Esther Gelman identified them as her assailants. (N.T. 43).

The defendant in his post trial motions first argues that this court erred by denying defendant's motion to suppress identification. He contends that the police did not have probable cause to arrest him. We disagree.

Officer Clark had probable cause to arrest Leavearne Miller and detain him for possible identification. The officer had information that three men participated in the food store robbery and a description of two of the suspects. Defendant Miller was a passenger in the car in which Nathaniel Turner, a man who fit the description of one of the suspects, was also a passenger. The defendant and his companions were apprehended a few minutes after the robbery, and two blocks from the scene of the crime. Moreover, the defendant filed from Officer Clark after the car in which he was riding crashed. While flight alone is insufficient to supply probable cause, the fact that the crime was reportedly committed by three men, the proximity of the time and place of the commission of the crime to the time and place of the arrests, and the fact that Leavearne Miller was in the company of a man fitting the description of one of the suspects was sufficient to supply probable cause for his arrest. Commonwealth v. Jones, 457 Pa. 428, 322 A.2d 119(1974); Commonwealth v. Benson, 239 Pa. Super. Ct. 100, 361 A.2d 695(1976); Commonwealth v. Hines, 230 Pa. Super. Ct. 290, 326 A.2d 485(1974).

The defendant, in his brief in support of his post trial motions, cites Commonwealth v. Everett, 234 Pa. Super. Ct.249, 338 A.2d 662(1975), to support his contention that the police lacked probable cause to arrest him. However, the descriptions in present case were more detailed than the general description of the two robbery suspects in Everett. In that case, the suspects were described as "two black males, one of whom was wearing a white T-shirt." Id. at 251, 338 A.2d at 663. In the case before this Court, the police had descriptions of the suspects which included complexion, hair length, height and weight. Moreover, in Everett, the element of flight was not present.

The defendant further argues that the on-the-scene Confrontation between himself and the robbery victim was unduly suggestive and violative of due process. It is clear that such in-custody, on-the-scene confrontations are permissible. Commonwealth v. Tuener, 454 Pa. 520, 524, 314 A.2d 496, 498 (1974); Moreover, there are no special elements of unfairness in this case. the identification was made within minutes after the commission of the crime, in front of the store which was robbed. We see no distinction between an identification of a suspect seated in the rear of a patrol car, which was the situation in Turner, and an identification made of a suspect seated in the back of a police van. Such an identification was upheld in Commonwealth v. Dickerson, 226 Pa. Super. Ct. 425, 429, 313 Ar 337, 338 (1978). The fact that the other robbery suspects were also in the back of the van was not prejudicial. In Turner, the co-defendants were identified at the same time. The fact that one of the suspects was holding a bag which the victim had previously described was not suggestive. There is no evidence in the record that the victim's attention was drawn to the bag by the police. Thus, the defendant's contention that this confrontation was illegal is without merit.

The defendant further argues that the denial of his application for severance constituted reversible error. He contends that his co-defendants were willing to testify in his behalf if he had a separate trial subsequent to their trial, and this fact, coupled with the fact that his alibi defense was antagonistic to his co-defendants' defense was so highly prejudicial as to warrant a new trial. We disagree.

Joint trials are not only permitted but also advised when the offenses charged stem from the same acts, and much of the same evidence is applicable to all the defendants. Commonwealth v. Kloiber, 378 Pa. 415,415, 106 A.2d 820, 822-23 (1954). The denial of a motion to sever is within the discretion of the motions court, and such denial should be reversed only if the court has manifestly abused its discretion. Commonwealth v. Kloiber, supra; Commonwealth v. Shriner, 232 Pa. Super. Ct. 306, 312, 322 A.2d 501, 504 (1974); Commonwealth v. Hirsch, 225 Pa. Super. Ct. 494, 497, 311 A.2d 679, 680-81 (1973); Commonwealth v. Kubacki, 208 Pa. Super. Ct. 523, 526, 224 A.2d 80, 82 (1966). See Pa. Rules Crim. Pro. 219 (Purdon Pamphlet 1978). The defendant, in his brief, cites two Federal cases which set forth rules to follow when determining whether to sever in order to allow a co-defendant to testify in behalf of a defendant. These cases suggest that the defendant must show that his co-defendants would voluntarily testify in his case if it was severed, and also show the significance of their testimony to his defense. U.S. v. Panetti, 436 F. Supp. 114,126 (1977), aff'd. 568 F.2d 771 (1978); U.S. v. Frumento, 409 F. Supp. 143,145 (1976), aff'd. 559 F.2d 120

In the present case, the only showing that the defendant made concerning his co/defendants' willingness to testify was the statement made by his counsel to the motion court that he had spoken with the co-defendants and that they told him they would testify. The motion court correctly took issue with this statement and expressed its doubt as to whether the co-defendants' attorneys would permit them to testify. According to the cases which the defendant himself cited, he has not adequately satisfied the first requirement. U.s/. v. Penetti, supra., U.S. v. Frumento, supra. See U.S. v. Rosa, 560 F.2d 149, cert, denied U.S. , 98 S. Ct. 1268 (1977). The fact that the defendant's defense was antagonistic to his co-defendants' defenses cannot alone provide a reason for severance. Therefore, the motion court properly denied defendant's motion to sever.

The defendant finally argues that the evidence provided at trial was insufficient to sustain a conviction. The test of sufficiency of the evidence is whether viewing the evidence in the light most favorable to the Commonwealth and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all the elements of the crime had been established beyond a reasonable doubt. Commonwealth v. Hamm, 474 Pa. 487,494, 378 1219,1222 (1977); Commonwealth v. Goodman, 465 Pa. 367,369-70, 350 A.2d 810,811 (1976); Commonwealth v. Robson, 461 Pa. 615,625, 337 A.2d 573,578 (1975). It is clear in this case that the elements of the crimes charged have been established beyond a reasonable doubt.

However, the defendant questions the identification testimony of Esther Gelman and states, in his brief in support of his post trial motions, that it was so inconsistent and ambiguous that it should not be accorded any weight. Variances in the testimony goes not to sufficiency of the evidence but to the credibility of the witnesses. It is the duty of the trier of fact to pass upon the credibility of the witnesses and the weight to be accorded the testimony. He is free to believe none, part or all of the evidence Commonwealth v. Duncan, 473 Pa. 62,68, 373 A.2d 1051,1053-54 (1977) Commonwealth v. Kahley, 467 Pa. 272,290, 356 A.2d 745,754 (1976); Commonwealth v. Robson, supra; Commonwealth v. Bridell, Pa. Supe Ct. , 384 A.2d 942, 945 (1978). Esther Gelman was consistent throughout the trial as to the extent of defendant Miller's participation in the crimes. While she may have been inconsistent concerning the extent of his participation at other hearings, she has never failed to identify Miller as one of her assailants. The fact that the witness may have previously testified and given contradictory versions to that which he testified at trial is merely one circumstance which the trier of fact would consider in determining credibility. Commonwealth v. Boyle, 470 Pa. 343,349-50, 368 A.2d 661,664 (1977).

For the above reasons, this Court believes that it properly denied defendant's post trial motions and that the defendant's appeal is without merit.


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