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COMMONWEALTH PENNSYLVANIA v. ROBERT MOORE (05/02/83)

submitted: May 2, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT MOORE, APPELLANT



No. 1155 Philadelphia 1981, Appeal from the PCHA Order of the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 0083-0090 Dec. Term 76.

COUNSEL

Thomas L. McGill, Jr., Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cercone, President Judge, and McEwen and Hoffman, JJ.

Author: Hoffman

[ 321 Pa. Super. Page 4]

Appellant challenges the legality of his arrest, several trial court rulings, and the effectiveness of counsel. We find these contentions meritless and, accordingly, affirm the order of the lower court.

[ 321 Pa. Super. Page 5]

Rosenwald's Meat Market was robbed on October 25, 1976, and again on October 29, 1976, by a man wearing white painter's pants and a stocking mask and carrying a sawed-off shotgun. Police arrested appellant at his home on November 15, 1976, pursuant to a warrant, and seized several items, including a stocking mask and white painter's pants, from appellant's bedroom. While in custody, appellant made an inculpatory statement. At a suppression hearing on October 3, 1977, appellant unsuccessfully moved to suppress the confession as well as the stocking mask and painter's pants.*fn1 After a jury trial on October 26, 1977, appellant was convicted of the October 29 robbery and sentenced to ten-to-twenty years imprisonment. Appellant's notice of appeal was quashed as untimely. Following appellant's subsequent Post Conviction Hearing Act (PCHA) petition, he was granted the right to request an appeal to this Court nunc pro tunc. This Court allowed the appeal on April 22, 1981.

Appellant contends first that his arrest was illegal because the warrant was not issued upon probable cause. Appellant relies on the two-pronged standard outlined in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).*fn2 The United States Supreme Court, however, has abandoned the Aguilar-Spinelli test in favor of a "totality of the circumstances analysis." Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d

[ 321 Pa. Super. Page 6527]

(1983). Under the new standard, "the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for . . . conclud[ing]' that probable cause existed." Id. at , 103 S.Ct. at 2332. The court is to make "a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant's tip[.]" Id. at - , 103 S.Ct. at 2329-30. Our Court recently applied Gates in Commonwealth v. Price, 318 Pa. Superior Ct. 240, 464 A.2d 1320 (1983). In both Gates and Price, the affidavit was deemed sufficient when based on an anonymous informant's tip corroborated by independent police work. Here, the arrest warrant was issued on the basis of an anonymous informant's tip, a photographic identification, and a description of the suspect. The informant was an eyewitness to the robberies who remained anonymous out of fear of retaliation, but who was later identified and testified at trial. (N.T. October 3, 1977 at 86 and October 25, 1977 at 2.5-2.14). The photographic identification was made by the owner of the meat market who witnessed the robbery. Although the photographic identification was later suppressed on the ground that the showing was impermissibly suggestive, probable cause for arrest may be based upon illegally obtained evidence. Commonwealth v. Turner, 478 Pa. 613, 387 A.2d 657 (1978). Moreover, there was an independent basis for the identification because the owner knew appellant from the neighborhood and recognized him during the robbery. On these facts, there was probable cause for the arrest warrant.*fn3

[ 321 Pa. Super. Page 7]

Appellant contends next that his confession should have been suppressed as an involuntarily coerced statement. He argues specifically that he was never taken to the bathroom, told of his right to make a phone call, or asked when he had last eaten, and was surrounded by several large detectives of heavy build. Appellant's contention lacks merit. Appellant was arrested at 10:30 a.m. on November 15, 1976, and he gave his inculpatory statement between 12:30 p.m. and 2:30 p.m.; therefore, there was no undue delay. He received Miranda warnings and waived his rights to remain silent and to have an attorney present. He was not beaten. Additionally, because we have determined the arrest was lawful, the confession cannot ...


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