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COMMONWEALTH PENNSYLVANIA v. JOEL BUTLER (07/03/86)

filed: July 3, 1986.

COMMONWEALTH OF PENNSYLVANIA,
v.
JOEL BUTLER, APPELLANT



APPEAL FROM THE JUDGMENT OF SENTENCE ENTERED DECEMBER 20, 1983 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY

COUNSEL

Sharon L. Steingard, Philadelphia, for appellant.

Kathleen A. McDonnell, Assistant District Attorney, Philadelphia, for Com., appellee.

Cirillo, President Judge, and Wieand and Olszewski, JJ.

Author: Cirillo

[ 354 Pa. Super. Page 535]

This is an appeal from a judgment of sentence entered by the Court of Common Pleas of Philadelphia County. Following a bench trial, appellant Joel Butler was convicted of robbery, aggravated assault, resisting arrest and theft. He was sentenced to three to seven years imprisonment for the robbery conviction, and to a concurrent term of imprisonment

[ 354 Pa. Super. Page 536]

    of two and one-half to five years for the aggravated assault conviction. We affirm.

At approximately 7:35 p.m., Leonora Colon and Luisa Rivera were standing outside the Colons' residence. Appellant appeared in front of them, looked at Ms. Rivera and then grabbed four gold chains from Ms. Colon's neck. In the course of the chain snatch, appellant grabbed Ms. Colon by the dress and knocked her to the ground. The incident occurred in daylight and both women were within arms length of the appellant the entire time, which was approximately five seconds.

Ms. Rivera's screams for help summoned an unidentified young Hispanic male, who chased after appellant. Moments later, the women saw a police vehicle and waived for it to stop. The vehicle was operated by Sergeant Rudloff. The women did not speak English and Sergeant Rudloff spoke no Spanish; however, he did notice their hysterical state and Ms. Colon's tattered appearance. An English speaking Hispanic youth appeared on the scene and translated the women's account of what had happened for Sergeant Rudloff. Approximately 15 to 20 seconds later, the first youth, who had pursued appellant, appeared and told Sergeant Rudloff that the perpetrator was hiding behind a wall about a block away.

The officer went to the described location and found appellant behind a wall and looking at the gold chain. Sergeant Rudloff cornered the suspect and instructed him not to move. Instead, the suspect punched the officer in the shoulder and attempted to flee. He was apprehended by additional officers who seized the gold chains from the suspect after subduing him.

Appellant was taken directly to a nearby police station. Meanwhile, additional officers were dispatched to pick up the victim and Ms. Rivera. Although the Commonwealth did not explain the reasoning for transporting both the suspect and the witness four city blocks to the station house in separate vehicles, as opposed to simply bringing the suspect one block to the scene of the crime, the trial court

[ 354 Pa. Super. Page 537]

    inferred that this was done because a Spanish speaking officer was present at the police station.

Appellant arrived at the police station before the victim and Ms. Rivera. Moments after appellant arrived at the police station, Ms. Rivera entered the station, noticed appellant and spontaneously identified him. Ms. Colon was then asked in Spanish if that was the man who robbed her. She replied "yes". The total amount of time which elapsed between appellant's arrest and identification was between ten and fifteen minutes.

Appellant raises six issues on appeal, claiming that 1) the warrantless arrest was not supported by probable cause and therefore the physical evidence should be suppressed; 2) his motion for suppression of identification evidence should have been granted because the arrest was not supported by probable cause; he was denied his right to counsel during identification; the identification procedure was unnecessarily suggestive, and the in-court identification of appellant was not based on an independent source and was tainted by the out-of-court identification procedure; 3) the denial of his request for a line-up was an abuse of discretion; 4) the evidence in support of the guilty verdict on the charges of aggravated assault and resisting arrest was insufficient; 5) the trial court erred in sentencing appellant in the aggravated range of the sentencing guidelines; and 6) he was denied his right to due process of law in the sentencing procedure.

We first consider the issue of probable cause. At the outset, it should be noted that the "totality of the circumstances" analysis of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) has been adopted in the Commonwealth of Pennsylvania. See Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985).

In utilizing the Gates approach as it applies to a warrantless arrest, a police officer must make a practical common sense decision whether, given all of the circumstances known to ...


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