No. 1052 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lancaster County at Nos. 1924, 1925 of 1979.
Vincent J. Quinn, Assistant Public Defender, Lancaster, for appellant.
Michael Ranck, District Attorney, Lancaster, for Commonwealth, appellee.
Cavanaugh, McEwen and Beck, JJ.
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Appellant Jessie James Griffin was tried by a jury and convicted of robbery, conspiracy, attempted murder, terroristic
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threats and simple assault. The charges arose out of an incident which took place at a branch office of the National Central Bank located in Bridgeport, Pennsylvania. Following the denial of post-verdict motions, appellant was sentenced to a term of imprisonment. The instant appeal was then filed. For the reasons discussed below, we now vacate the judgment of sentence on the attempted murder charge and affirm the judgment of sentence on the remaining charges.
The facts leading to appellant's arrest are as follows. At approximately 11:07 a.m. on October 9, 1979, Officer Savage of the East Lampeter Township Police Department received a call through the County Radio Network that the alarm at the National Central Bank had been activated. Officer Savage proceeded to the bank in a marked police vehicle. As he pulled up behind the bank, he encountered two black males, one of whom pointed a gun at him. Several shots were fired into the driver's side of the police cruiser. When the shooting stopped, Officer Savage reported over the county radio that two black males had shot at him and had fled the scene in an unknown direction.
Meanwhile, Troopers Ator and Harnish of the Pennsylvania State Police also proceeded to the bank in response to the alarm. As they entered a passageway between two stores which were adjacent to the bank, they observed a maroon over silver Cougar automobile exiting the plaza parking lot at a high rate of speed. The state troopers left in pursuit of this vehicle. Trooper Ator observed that there were two occupants in the car and that one, the passenger, appeared to be taking clothing off and crawling from the back to the front seat. Within moments, the officers received a radio message that there had, in fact, been a robbery and that shots had been fired. Trooper Ator then activated the sirens and flashing lights on his vehicle. The Cougar did not stop, but instead attempted to evade the police officers by entering a parking lot and turning around to emerge traveling in the opposite direction. A brief high-speed chase ensued. Within moments the officers
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came upon the vehicle stalled on the median divider strip of a highway entrance ramp. One black male in the area was immediately seized and taken into custody.
Trooper Ator approached the disabled vehicle and observed green overalls, a blue bank deposit bag, and an open paper bag containing money in the car. Chief Glick of the East Lampeter Township Police Department, who had also been chasing the Cougar, had arrived on the scene by this time and informed Trooper Ator that the bank had been robbed by two black males who had fired shots at Officer Savage. At this point, Trooper Ator's attention was attracted to persons in a nearby industrial park who were pointing and yelling that the individual who was in the car had run in the direction of the industrial buildings. One observer told Trooper Ator that a person had run between a railroad boxcar and a nearby building. Another individual, who was located on top of a tank truck, told Trooper Ator that there was a person on the roof of the building. Trooper Ator then saw the appellant peering over the roof of the building, ordered him down from the roof, and placed him under arrest at about 11:20 a.m. Appellant's arrest was therefore completed within approximately fifteen minutes of the time the bank alarm was first activated.
On November 1, 1979, the District Attorney of Lancaster County filed Information Nos. 1924 and 1925 of 1979. Information No. 1924 charged appellant with robbery, attempted murder, and criminal conspiracy, while Information No. 1925 charged him with simple assault and terroristic threats. Various pre-trial motions were denied and appellant was tried by a jury in January, 1980. As stated above, he was found guilty of all five charges. Following the denial of post-verdict motions, appellant was sentenced as follows: ten to twenty years imprisonment on the robbery offense; five to ten years imprisonment for attempted murder; five to ten years imprisonment for criminal conspiracy; two and one-half to five years imprisonment for terroristic threats; and two years probation for simple assault. All the sentences were to run concurrently with
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each other but consecutive to other sentences then being served by appellant. Appellant was also fined $100.00 on the robbery charge and ordered to pay the costs of prosecution on all charges.
Appellant raises several issues on appeal. His first claim is that the lower court erred in denying his application to quash the count charging him with terroristic threats. The information alleged that when the head teller, Katherine Hess, refused to open the vault, appellant stated to her, "I ought to kill you," and that the statement was made while appellant was kicking her and brandishing a firearm at her. According to 18 Pa.C.S.A. § 2706, a person commits the crime of terroristic threats "if he threatens to commit any crime of violence with intent to terrorize another . . . ." Appellant admits that the information alleged sufficient facts to indicate that he uttered a statement with intent to terrorize. He contends, however, that the statement "I ought to kill you" is not, by definition, a threat. We need not look at the statement in a vacuum. Rather, we will consider the statement in light of the surrounding circumstances. Commonwealth v. Holguin, 254 Pa. Super. 295, 306 n. 12, 385 A.2d 1346, 1352 n. 12 (1978); Commonwealth v. White, 232 Pa. Super. 176, 335 A.2d 436 (1975). We feel that the statement "I ought to kill you," made during the course of a robbery by someone brandishing a gun and kicking the person to whom the statement was made, is sufficient to constitute a threat under section 2706 of the Crimes Code. Therefore, it was not error for the lower court to deny appellant's application to quash the count charging him with terroristic threats.
Appellant next claims that the lower court erred in denying his motion to suppress certain evidence. This claim is based on appellant's contention that his arrest was not based on probable cause and was, therefore, illegal. He alleges that an oral statement made by him in which he admitted participating in the bank robbery should be suppressed as the fruit of an illegal arrest, and that since the probable cause section of the search warrant affidavit was
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based, in part, on the illegally obtained inculpatory statement, the search warrant is invalid and certain items ...