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COMMONWEALTH PENNSYLVANIA v. CLYDE GIBBS (07/03/89)

submitted: July 3, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
CLYDE GIBBS, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of York County, No. 374 C.A. 1987.

COUNSEL

Steven G. Zorbaugh, York, for appellant.

C.N. Patterson, Jr., Asst. Dist. Atty., York, for Com.

Wieand, Montemuro and Cercone, JJ.

Author: Wieand

[ 387 Pa. Super. Page 183]

Clyde Gibbs was tried by jury and was found guilty of rape, robbery and a violation of the Uniform Firearms Act.

[ 387 Pa. Super. Page 184]

Post-trial motions were denied, and Gibbs was sentenced to serve a term of imprisonment for not less than eleven (11) years nor more than twenty-two (22) years. No timely appeal was filed. Defense counsel, however, filed a P.C.H.A. petition; and thereafter new counsel was appointed to represent Gibbs. A supplemental P.C.H.A. petition was then filed, and an evidentiary hearing was held. The P.C.H.A. court vacated part of Gibbs' sentence and allowed him to file a direct appeal nunc pro tunc, but in all other respects denied relief. This appeal followed in which Gibbs avers numerous trial errors and instances of ineffective assistance of counsel.

The Commonwealth's evidence showed that on December 30, 1986, appellant had entered the Swinger's Adult Book Store in York, Pennsylvania, where at one time he had been employed. Armed with a .22 caliber pistol, he forced Jody Heist, the store attendant, into the basement where he raped her several times. Before leaving, he also removed the sum of $282 from the store's cash register. Heist called the police after appellant had gone, but gave an intentionally inaccurate description of the robber and did not mention that she had been raped. This she attributed to threats made to her by appellant before he left the store. When police produced a suspect who fit the description which she had given, Heist conceded that she had given the police incorrect information. She then told the police that she had been raped and that appellant had been her assailant. She also gave police the address where she thought appellant was living.

Two police officers thereafter went to appellant's home where, as they approached, they observed a male quickly enter the house and close the door. They went to the door and knocked, but, hearing running footsteps and fearing that appellant was escaping, they forced open the door and apprehended appellant. A search of the premises was not then conducted. Instead, a search warrant was obtained on the basis of information supplied by the victim, and the premises were searched pursuant thereto. During the subsequent

[ 387 Pa. Super. Page 185]

    search, police found a .22 caliber revolver, loose change and a pair of sneakers with a tread which matched markings found in the dirt of the store basement.

Appellant's contention that these items of evidence were fruits of an unlawful arrest must fail. Even if we assume for purposes of argument that appellant's arrest was illegal because it was without warrant and there were not exigent circumstances (a fact which we do not decide), the evidence was seized during a lawful search conducted pursuant to a warrant issued on probable cause supplied by an independent source. This independent source was the victim. The information regarding the crime and the address of the perpetrator had been supplied by her prior to appellant's arrest, but police had determined that a prompt arrest should be made without the delay inherent in obtaining a prior search warrant. After the arrest, however, and without conducting any search at the time of the arrest, police obtained a search warrant and thereafter conducted a ...


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