NO. 2104 PHILADELPHIA, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 2261-65 September Session 1979.
Mark E. Kogan, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Rowley and Van der Voort, JJ. Spaeth, J., concurs in the result.
[ 312 Pa. Super. Page 221]
On Monday, September 3, 1979, Bill Cook's Pub at 5701 Elmwood Avenue, Philadelphia, was burglarized and Bill Cook, the proprietor, severely beaten by the burglar. In a non-jury trial on May 5, 1981, Appellant was found guilty of recklessly endangering another person, possession of an instrument of crime, aggravated assault, criminal trespass, and burglary. After denial of post-trial motions, Appellant was sentenced to a total of ten to twenty years imprisonment. The case is before us on direct appeal.
Appellant was apprehended by a police officer two blocks from the scene of the crime, within a few minutes after the assault on Mr. Cook. The officer brought Appellant back to the Pub where he was identified by the victim of the beating as his assailant.
The sole issue on appeal is whether the victim's identification of Appellant as his assailant, a statement he later made
[ 312 Pa. Super. Page 222]
to a detective denying guilt, and a flashlight which he removed from his pocket at the police station, should have been suppressed on the ground that they were the fruits of an arrest, illegal because made without a warrant or probable cause.
The circumstances leading up to Appellant's arrest are these: At 5:30 a.m. of the day of the break-in, a silent burglar alarm went off at Cook's Pub, connected to a police station and the apartment of William Cook, the Pub owner and victim. In response to the alarm, Mr. Cook and the police arrived at the Pub simultaneously, checked the first floor and basement and discovered evidence of the break-in and the burglary but no clue as to the whereabouts of the burglar.
In mid-morning of the same day, Cook decided to visit the basement again, to check the possibility of the burglar's entry having been made through a wall from an adjoining empty building. While in the basement, he unexpectedly came upon a man standing in a shower stall in the basement bathroom. The fluorescent lights above the shower were lit, the shower curtain was open, and the intruder was facing Cook and standing motionless in the shower stall. Cook, 69 years old, was frozen with fright, and after staring at the Appellant several moments, attempted to retreat to the stairway to the first floor. He had taken only a step or two when the intruder assaulted him with what appeared to be a tire iron, striking him some 15 to 18 times. Cook put up his arms to break the blows to his head, but was knocked to the floor and badly beaten. He screamed for help, and Appellant ran up the steps to the first floor and out of the building. Someone in the bar of the Pub put in a call to the police and Officer Daniel Pinkney, cruising in a nearby radio patrol car, was dispatched to the scene of the disturbance at approximately 10:57 a.m. This was within a few minutes of the attack on Cook.
When Officer Pinkney was two blocks from the Pub, he was flagged down by the hand-waving and horn-blowing of a motorist driving ...