No. 538 Philadelphia, 1984, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Montgomery County, No. 787-82.
Douglas M. Johnson, Assistant Public Defender, Thorndale, for appellant.
J. William Ditter, III, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Cavanaugh, Wieand and Montgomery, JJ.
[ 340 Pa. Super. Page 139]
On March 1, 1982, at or about 1:45 p.m., a man pushed his way at knifepoint into a Lakeside apartment in Cheltenham, Montgomery County. There he blindfolded, bound, undressed, assaulted, terrorized and robbed the female occupant. When the intruder left about 3:05 p.m., the occupant was able to free herself and call the police. She described her assailant as a negro male, approximately five feet, seven inches in height, stocky, light skinned, having dark eyes and eyebrows, and wearing a gray jacket. The description, except for the dark eyes and eyebrows, was broadcast.
The broadcast was heard by Henry Schramm and Harrison Marsteller, members of the Philadelphia Police Department, who were on routine patrol in the City of Philadelphia, approximately five blocks from the Lakeside Apartments. At or about 3:30 p.m., they observed a black male,
[ 340 Pa. Super. Page 140]
later identified as Larry Capers, running toward them from the direction of Cheltenham. Because the man matched the description which had been broadcast by police radio, the police stopped him. He was sweating profusely, was out of breath, had blood on one hand and was carrying a plastic bag. A pat down of Capers' outer clothing revealed a hard object which, upon withdrawal, proved to be a folding knife with five inch blade. Red stained linens were found inside the bag which Capers had been carrying.
Capers was placed under arrest and returned by police van to the Lakeside Apartments. The victim of the earlier crimes refused to allow Capers into her apartment, but while he stood outside and she looked through a window, she was able to identify Capers as her assailant. She also identified the knife which had been removed from Capers' person and the gray jacket which he had been wearing at the time of the crime.
Capers was tried non-jury and was found guilty of robbery,*fn1 simple assault,*fn2 indecent assault,*fn3 terroristic threats,*fn4 recklessly endangering another person,*fn5 theft of moveable property,*fn6 and possession of an instrument of crime with intent to employ it criminally.*fn7 He was sentenced to a term of imprisonment for seven to fifteen years on the robbery conviction and to a consecutive term of one to three years for possession of an instrument of crime. Sentence for indecent assault was suspended. On direct appeal, Capers contends that various items of physical evidence, including the knife, were products of an illegal arrest and/or unlawful search and should, therefore, have been suppressed. He also contends that the on-the-scene identification by the victim was unduly suggestive, that he did not voluntarily
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and intelligently waive his right to be tried by a jury, that the evidence was insufficient to sustain a conviction for indecent assault, and that his sentence was excessive. There is no merit in any of these contentions. However, the indefinitely ...