Special Transfer Docket Nos. 334 and 336, Special Transfer Docket Nos. 335 and 337, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 2336, 2337 and 2338 May Term, 1977
Maxine Stotland, Assistant District Attorney, Philadelphia, for the Commonwealth.
Joel W. Todd, Philadelphia, for Branch.
Cercone, President Judge, and Cavanaugh, Brosky, Wickersham, Watkins, Hoffman and Van der Voort, JJ. Cercone, President Judge, and Hoffman, J., concur in result.
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Following a jury trial, Lavern Branch was convicted of third degree murder and weapons offenses.*fn1 Timely post-verdict motions were filed alleging, inter alia : (1) the preliminary hearing court erred in ruling that a prima facie case had been offered where the evidence introduced by the prosecution, and admitted over objection, was hearsay;*fn2 (2) the suppression hearing court erred in vacating its order directing the suppression of Branch's inculpatory statement and reopening the hearing to permit the Commonwealth an opportunity to offer additional evidence; and, (3) the prosecutor's closing argument to the jury amounted to prosecutorial misconduct.
The trial court, accepting appellee's first contention of error, ruled that, excluding the use of hearsay testimony, a prima facie case had not been established at the preliminary hearing. On that basis, it granted Branch a new trial and ordered him discharged subject to rearrest. Both parties appealed that determination to the Supreme Court, the Commonwealth from discharge and Branch from the denial of those additional grounds presented in his post-verdict motions. This appeal is before us by way of a special transfer from the Supreme Court.
The relevant procedural history of the case may be summarized as follows: On May 11, 1977, Branch was arrested in connection with the shooting death of Quinzell Carroll which had occurred earlier that day at a Philadelphia playground. At the preliminary hearing on May 25, 1977, it was stipulated that the decedent's death had been caused by gunshot wounds. Also presented at that time was testimony by a police officer of a confession purportedly obtained from Branch, wherein he admitted firing a weapon at individuals playing basketball. That witness -- the police officer who
[ 292 Pa. Super. Page 429]
had obtained Branch's statement -- further testified, over objection, that the decedent's brother had witnessed Branch shoot the victim, though the decedent's brother did not testify at the preliminary hearing, the Commonwealth represented that he would be available at the time of trial. Concluding that a prima facie case had been established, the hearing judge ordered Branch held for court.
A motion to suppress that statement was subsequently filed. Following hearing, the motion was granted upon the court's finding that though the confession had been voluntarily rendered, it was the product of an arrest made without probable cause.
The trial court determined the witnesses used by the Commonwealth, Officers Martin and Garvey, to prove the existence of probable cause, had not testified in a manner which connected the appellant with statements made by Broderick Carroll which indicated Branch had committed a crime. Thus, hearsay identification testimony presented at the preliminary hearing appeared not to connect Branch with the incident. However, three days later, following application*fn3 by the Commonwealth, the suppression hearing court issued an order vacating its earlier findings of fact and conclusions of law and directed a rehearing on the motion to suppress. The Commonwealth submitted additional testimony given by the two police officers that they saw Carroll point toward Branch and state: "That's him. That's the one who shot my ...