Appeal from the Judgment of Sentence of December 14, 1983 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 83-05-0983.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
Tamilia, Hoffman, and Hester, JJ.
[ 360 Pa. Super. Page 469]
This is an appeal from the judgment of sentence for burglary. Appellant contends that the trial court erred in denying his motion to suppress out-of-court and in-court identifications and physical evidence because (1) his arrest was unsupported by probable cause; (2) the out-of-court identification procedure was unduly suggestive. We agree that appellant's arrest was unsupported by probable cause and that his motion to suppress should have been granted in regard to the out-of-court identification and the physical evidence. We disagree that the in-court identification also should have been suppressed. Because illegally obtained evidence was used against appellant, the judgment of sentence is reversed and a new trial is awarded.
At 10:00 a.m. on the morning of April 25, 1983, the complainant heard noises coming from a second floor room in his house in West Philadelphia. He went to the room, and observed a black male attempting to pry open the window. The complainant stepped out of the room momentarily, returning with a shotgun which he trained on the perpetrator. Seeing the weapon, the perpetrator -- who had not succeeded in entering the room -- fled. The entire episode lasted ten to fifteen seconds. After the complainant contacted the police, the police radio broadcast the following description: black male, dark complexion, blue sweatshirt, about eighteen to twenty years old with close cropped hair. The police subsequently brought, over a period of two hours, five suspects to the complainant's home for identification. He failed to identify any. During the course of this procedure, the complainant told police that the suspects did not match the description he had originally given when he reported the crime. He then supplemented the police description with the following facts: the suspect was taller than 5'8" to 5'9" and that the sweatshirt zipped up the front and had a red stripe running down the arms. With the supplement, and over two hours after the crime occurred, police observed appellant standing on a street corner approximately
[ 360 Pa. Super. Page 470]
two blocks from the scene of the crime. Appellant was over 6' tall and wore a sweatshirt matching the description given by the complainant. Police approached appellant and transported him to the scene of the crime where the complainant identified him as the perpetrator.
Appellant filed a pre-trial motion to suppress the out-of-court identification and the sweatshirt as fruits of an illegal arrest. The trial court denied the motion, ruling that there was probable cause to arrest appellant when he was picked up on the street corner. Appellant was then tried without a jury. At that trial he was again identified by the complainant. Appellant was convicted of burglary and sentenced to four-to-twenty-three months incarceration. This appeal followed.
Appellant contends that the trial court erred in denying his motion to suppress the out-of-court and in-court identifications and the sweatshirt. He argues that, as his arrest was not supported by probable cause, the above evidence should have been suppressed as fruits of the illegality. We agree that appellant's arrest was not supported by probable cause and therefore hold that the trial court erred in denying his motion to suppress the out-of-court identification and the sweatshirt. We disagree, however, that the in-court identification should have been suppressed.
To be constitutionally valid, a warrantless arrest must be supported by probable cause. Commonwealth v. Voss, 333 Pa. Superior Ct. 331, 339, 482 A.2d 593, 598 (1984). Probable cause for arrest exists when the facts at the time of arrest would warrant a prudent person in believing that a criminal offense had been committed, and that the suspect was the perpetrator of the offense. Commonwealth v. Woodson, 342 Pa. Superior Ct. 392, 395, 493 A.2d 78, 79 (1985). While information sufficient to establish probable cause cannot be defined to a mathematical certainty, this Court has recognized certain factors as helpful to that ...