No. 75 Special Transfer Docket, No. 76 Special Transfer Docket, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal, of Philadelphia, at Nos. 1160-1163 January Term, 1976
Arthur R. Shuman, Jr., Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Montgomery, O'Brien and Honeyman, JJ.*fn*
[ 275 Pa. Super. Page 313]
Appellant, Otis Walker, Jr., was convicted by a jury of murder of the third degree, aggravated assault, criminal conspiracy and various weapons offenses. Post-verdict motions were denied and appellant was sentenced to consecutive prison terms of ten to twenty years for the murder conviction and one to two years for the assault conviction. This appeal followed.
Appellant first argues that the trial court erred in permitting evidence of an alleged confession by appellant
[ 275 Pa. Super. Page 314]
and evidence of in and out of court identifications by a witness because appellant was illegally arrested and this evidence flowed directly from the alleged illegal arrest. The facts are as follows.
On December 9, 1975, Harold Berry and Jerome Thomas were stabbed in two separate incidents closely related in time and location in North Philadelphia by a group of individuals. Thomas survived his wounds, but Berry died shortly after the incident. The following description went out over the police radio "Six negro males from the 24th and Berks Street gang. One was 6'4", thin build, wearing a brown cashmere coat and a black hat. Second male had on an army field jacket with the hood pulled up. Third male was negro with a white tee shirt on. No description of the other males. Males went south on 32nd from Berks in a white Oldsmobile". Fifteen minutes later, police arrested three males on Judson Street between 23rd and 24th Streets. Two were wearing army jackets and a third was wearing a blue jacket over a white tee shirt. No white Oldsmobile was in the vicinity. The three, one of whom was appellant, were taken to the scene of the stabbing, where Janice Berry, sister of the deceased and a witness to the stabbing, identified appellant as one of the assailants. Appellant subsequently made a partially inculpatory statement.
Our Supreme Court recently reviewed the conviction of Cleveland Powers, a co-defendant of appellant who was arrested with appellant. On the same set of facts, the Court stated:
"While it may be true, as appellant argues, that many young black men in the 24th and Berks Streets area wear green army jackets and white tee-shirts, nevertheless, the discovery of the three youths, together on the street, in the neighborhood to which the suspects had fled, ten to fifteen minutes after the crime had occurred, where the three youths fit descriptions of the suspects and where there were no other persons matching those descriptions in the area, presented a combination of circumstances which was surely sufficient to justify a reasonable belief that
[ 275 Pa. Super. Page 315]
they could well be the guilty parties. Thus probable cause existed to arrest appellant. Compare Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974), with Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970). Since the arrest was legal, appellant's argument that his confession should have been suppressed because it was the fruit of an illegal ...