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COMMONWEALTH PENNSYLVANIA v. WALTER PENN (01/26/82)

decided: January 26, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
WALTER PENN, APPELLANT



Nos. 462, 527 January Term, 1978, Appeal from denial of Post Trial Motions and Judgments of Sentence of the Court of Common Pleas of Philadelphia, Trial Division-Criminal Section, February Term, 1978, Nos. 269 and 271, by the Honorable Albert F. Sabo dated October 23, 1978.

COUNSEL

Michael J. Byrne, Jr., Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Mark S. Gurevitz, Asst. Dist. Atty., for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, McDermott, and Hutchinson, JJ.

Author: Roberts

[ 497 Pa. Page 237]

OPINION OF THE COURT

This is a direct appeal from judgments of sentence imposed by the Court of Common Pleas of Philadelphia on convictions of murder of the first degree and possession of an instrument of crime. For the reasons set forth below, we affirm.*fn1

Viewed in the light most favorable to the Commonwealth as verdict winner, the evidence establishes that on December 23, 1977, appellant became involved in an argument with Frances Hood, a woman with whom he was living. During the argument, appellant first attempted to push Ms. Hood out of a window. He then killed her by stabbing her repeatedly in the neck and chest, and fled the scene.

Appellant was arrested on January 25, 1978, on an unrelated charge, at which time he gave police a fictitious name. Upon determining appellant's true identity, police discovered that there existed two outstanding warrants for appellant's arrest on charges of murder, including the murder of Frances Hood. Following conviction by a jury, post-verdict motions were denied. Appellant was sentenced to life imprisonment for the murder and a concurrent term of two and one-half to five years for the weapons offense. This appeal followed.

Appellant advances numerous contentions in support of his argument that two incriminating statements made to police shortly after his arrest should have been suppressed. He first claims that his warrantless arrest was invalid because it was not based upon probable cause. He does not contend that the Commonwealth's evidence, if believed, fails to establish probable cause, but rather that the police version of the arrest was fabricated and that his version of the arrest should be believed. According to the Commonwealth, on January 25, 1978, a woman named Ruby Blocker approached a Philadelphia police officer and told him that she had been stabbed and held hostage by appellant. The stab

[ 497 Pa. Page 238]

    wounds were visible to the officer. She further informed the officer that appellant was wanted for two murders and that he was at that time fleeing in a brown Hornet automobile. The officer and Ms. Blocker then pursued the vehicle, which was still in sight. After a chase, appellant was apprehended by other officers who had heard the broadcast of appellant's description and location over police radio. Seconds later, Ms. Blocker positively identified appellant as her assailant. This evidence clearly establishes that there were facts available to the arresting officers which would justify the belief of a reasonable person that a crime had been committed and that appellant was the perpetrator. See Betrand Appeal, 451 Pa. 381, 303 A.2d 486 (1973).

Appellant contends that he was in fact arrested simply because he had vomited on the sidewalk. The suppression court rejected appellant's version of the arrest as incredible and credited the testimony of police. Resolution of questions of credibility is for the trier of fact, and where, as here, that resolution is based upon credible evidence, it will not be disturbed on appeal. Commonwealth v. Whack, 482 Pa. 137, 393 A.2d 417 (1978); Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977). Accordingly, we reject appellant's claim that his warrantless arrest was invalid.

Appellant next contends that he was interrogated prior to receiving his Miranda warnings and that this interrogation tainted all subsequent statements made by appellant. Appellant's contention is based on the fact that, while appellant was being transferred to the homicide unit after his identification as Walter Penn, a police officer with him said, "Hey, you've been involved in other murders," to which appellant responded, "Yeah, I was involved in a homicide in Pittsburgh."*fn2 Whether the officer's statement constituted interrogation, as appellant claims, or was simply a gratuitous remark, as the Commonwealth contends, is immaterial. Appellant's response, which merely confirmed a fact of record, was not introduced at trial. Indeed, all references to

[ 497 Pa. Page 239]

    this prior homicide in appellant's subsequent statements were carefully redacted before those statements were introduced into evidence. Moreover, appellant has not shown that police in any way exploited this brief exchange of remarks in the subsequent interrogation of appellant, which was preceded by appropriate Miranda warnings. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Commonwealth v. Bruno, 466 Pa. 245, 352 A.2d 40 (1976). Thus this claim must fail.

Appellant next contends that because he was in a drugged and intoxicated condition when he was arrested, he lacked sufficient mental capacity to waive his right to remain silent. This contention was resolved against appellant by the suppression court on the basis of credible evidence, including the fact that appellant possessed the presence of mind to conceal his true identity from police at the time of his arrest. Accordingly, this determination of the suppression court will not be disturbed on appeal. See Commonwealth v. Holly, 483 Pa. 371, 396 A.2d 1215 (1979).

Appellant further argues that his incriminating statements should have been suppressed because there was unnecessary delay between his arrest and arraignment and because police failed to rewarn him of his Miranda rights prior to taking his statements. Appellant was arraigned five hours and twenty minutes after his arrest. Thus, he does not argue that his statements should be excluded on the basis of Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977) (delay of over six hours between arrest and arraignment renders pre-arraignment statements inadmissible). Rather, he argues on the basis of Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), that his statements were tainted by unnecessary delay within this period. The record indicates that the first two hours following appellant's arrest were required for his administrative processing, in large part ...


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