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submitted: February 10, 1988.


Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 3189-3200 SEPT 1986


Robert S. Robbins, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

Cirillo, President Judge, and Tamilia and Hester, JJ. Cirillo, President Judge, filed a concurring and dissenting opinion.

Author: Tamilia

[ 373 Pa. Super. Page 58]

Appellant was convicted following trial by jury of the following crimes and sentenced to imprisonment as stated: involuntary deviate sexual intercourse (7 to 15 years); kidnapping (consecutive 2 to 5 years); robbery (consecutive 1 to 3 years); and possession of an instrument of crime (concurrent 1 to 3 years). Convictions for theft and false imprisonment merged. Appellant filed post-trial motions which were subsequently argued and denied by the trial court. Appellant raises several issues in this appeal of his convictions and his sentence for involuntary deviate sexual

[ 373 Pa. Super. Page 59]

    intercourse. These issues can summarily be stated as follows: 1) whether his arrest was based upon probable cause; 2) whether his trial counsel was ineffective; and 3) whether his sentence for involuntary deviate sexual intercourse was excessive.

On August 25, 1986 at approximately 4:30 a.m., Laura Smith fell asleep behind the wheel of her parked car after dropping off a friend in the Germantown section of Philadelphia. Appellant walked past the victim's car and seeing her asleep, entered the car on the driver's side, pushing the victim over. Appellant held a knife in his hand and demanded jewelry and money. After giving appellant what she had, the victim begged him to let her go. When she reached for the door, appellant poked her with his knife and warned her he did not want to hurt her but he would. He also told Miss Smith he had a gun in the duffle bag which he was carrying. Appellant then drove the car to the end of the block where he ordered the victim into the back seat. There he forced her at knife point to perform oral and anal intercourse. Appellant then climbed back into the front seat and ordered the victim to join him because they were going for a drive. He drove around Germantown while he talked with her about the possibility of them seeing each other as "boyfriend and girlfriend." When Miss Smith was unresponsive to appellant's conversation, appellant threatened to sexually assault her again. He asked her to meet him that night at the Baby Grand Bar on Germantown Avenue at 11:00 p.m. He drove by the bar several times to show her where it was and forced her to promise to meet him there. When appellant finally got out of the victim's car, he hugged and kissed her and demanded that she reciprocate. The whole ordeal lasted approximately two hours.

The victim described her attacker to police as a black man with facial hair, a dark complexion, slightly over six feet tall, approximately 170 pounds, with dark eyes, dark clothing, and approximately twenty-four or twenty-five years old. He also wore his long hair combed straight up and had

[ 373 Pa. Super. Page 60]

    very strong body odor. The victim agreed with the police to park her car in front of the Baby Grand Bar at 11:00 that night while police staked out the area. She was to turn off her headlights as a signal to the police officers whenever she saw the appellant. During the stake-out several black men walked past her car as the officers watched from unmarked vehicles but she never gave the signal. Finally, appellant, who fit the description, was walking toward the bar just before 11:00 p.m. As he approached the bar he looked in the direction of the police vehicle and then turned onto a sidestreet before reaching the bar. The victim did not give the signal this time either. Two officers, however, believing the appellant to be the attacker based on the victim's previous description, followed the appellant in their car for a short distance before stopping alongside him. They got out of their car and identified themselves as police officers. As they approached appellant they immediately smelled a strong odor and noticed a bulge under appellant's shirt. One of the officers conducted a pat-down search which uncovered a knife-like tool fitting the description given by Miss Smith. A further pat down uncovered the rings which had been stolen from the victim. Miss Smith positively identified the knife and rings. The next month she viewed a lineup and identified appellant as her attacker despite the fact that at this time his hair was closely cropped and he had shaved.

Appellant's first contention is that the police lacked probable cause to arrest him and therefore, the evidence which resulted from this unlawful arrest should have been suppressed. We find the officers did have probable cause to arrest appellant; thus, there is no need to address the suppression issue. In determining the existence of probable cause, "'[t]he crucial test is whether there were facts available which would justify a person of reasonable caution in the belief that a crime had been committed and that the individual arrested was the probable ...

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