No. 474 Philadelphia 1985, Appeal from Judgment of Sentence February 21, 1985, in the Court of Common Pleas of Philadelphia County, Criminal No. 2984-2989, 3069, 70, 71, 76, 3074, 3075 Oct. 1982.
Robert B. Mozenter, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Rowley and Olszewski, JJ. Rowley, J., concurs in the result. Brosky, J., files concurring opinion.
[ 349 Pa. Super. Page 360]
This appeal follows appellant's jury conviction of conspiracy, robbery and related offenses. The offenses stem from three separate incidents and resulted in a sentence of 15 to 57 years. Appellant challenges: (1) the trial court's denial of his motion to suppress; (2) the effectiveness of trial counsel; (3) the trial court's denial of his motion for new trial based on ineffectiveness of counsel; and (4) the propriety of imposing consecutive, cumulative sentences.
In April of 1982, three taverns in a two-block area in Philadelphia were the scene of armed robberies: Jolly's Bar on April 10, Mac's Bar on April 26, and Denny's Bar on April 28. The robberies of these taverns were distinguished from other robberies in the area by their modus operandi.*fn1 The victims' description of the robber was the same in each incident.
On April 29, Melvin Prophet was arrested for the robbery of Denny's Bar. Victims of that robbery had recognized Prophet and identified his accomplice as "Dave." During a search of Prophet's home, pursuant to a warrant, stocking masks, loose ammunition, and a sawed-off shotgun were discovered. Prophet's grandmother and sister told police they believed appellant, David Bryant, brought the shotgun into the house.
Less than two weeks later, police arrested Anthony Bryant (unrelated to appellant) in connection with other robberies in the same neighborhood. When questioned about the robbery at Denny's Bar, Anthony Bryant told police that Prophet had admitted robbing Denny's with appellant, David Bryant. Without further investigation, an arrest warrant for appellant was obtained on May 15, 1982.
[ 349 Pa. Super. Page 361]
On October 5, 1982, the bartenders from Mac's Bar and Jolly's Bar identified appellant from a photo lineup as the perpetrator of those robberies. Warrants were issued, and the appellant was arrested on October 7 for the Mac's Bar robbery. At that time, appellant made an inculpatory statement regarding that robbery. He was arrested on October 15 for the robbery of Jolly's Bar.
At trial, appellant based his motion to suppress on the absence of probable cause to arrest for the robbery of Denny's Bar. In connection with the robbery of Mac's Bar, the motion to suppress was based on the failure of the Commonwealth to show that the photo lineup was not unduly suggestive and the inculpatory statement was voluntarily given.
Appellant's arrest for the April 28 robbery of Denny's Bar was legal. The United States Supreme Court has abandoned the "two-pronged test" of 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, 27 L.Ed.2d 637 (1969), and replaced it with a "totality of the circumstances" approach. Illinois v. ...