Com. v. Butler

• Decision Date: 03 July 1986
• Citation: 354 Pa.Super. 533,512 A.2d 667
• Parties: COMMONWEALTH of Pennsylvania, v. Joel BUTLER, Appellant.
• Court: Pennsylvania Superior Court

Page 667

512 A.2d 667

354 Pa.Super. 533

COMMONWEALTH of Pennsylvania, v. Joel BUTLER, Appellant.

Superior Court of Pennsylvania.

Argued May 6, 1986.

Filed July 3, 1986.

Sharon L. Steingard, Philadelphia, for appellant.

Kathleen A. McDonnell, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CIRILLO, President Judge, and WIEAND and OLSZEWSKI, JJ.

CIRILLO, President Judge:

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 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 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 incourt 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 him at that time, including hearsay information, there is a fair probability that a crime was committed and that the suspect committed the crime. The duty of this Court is to insure that the police officer had a "substantial basis for concluding that probable cause existed." See Commonwealth v. Sorrell, 319 Pa.Super. 103, 465 A.2d 1250 (1983). We find that the arresting officer had a substantial basis for concluding that probable cause existed at the time he made his warrantless arrest of appellant.

The veracity of the youth who described appellant's location has never been questioned; he was only a conscientious bystander trying to help persons in distress. Whether the youth knew that the person he was chasing was in fact appellant, however, is not as clear. Yet, given that the youth appeared on the scene of the crime seconds after the crime had occurred and had given instant chase, it is reasonable to infer that the youth saw the person fleeing from the scene and assumed that individual was the perpetrator. Moreover, the sequence of events which transpired after the youth brought Sergeant Rudloff to appellant gave Sergeant Rudloff sufficient probable cause to arrest. The officer saw a man kneeling and looking at a gold chain such as had been stolen just minutes before and only one block away. When Sergeant Rudloff, an officer in uniform, instructed appellant not to move, appellant struck him and attempted to flee the scene and then physically resisted arrest. It is reasonable to assume from these facts, independent of the first youth's knowledge, that there was a substantial basis for concluding that appellant was the perpetrator. As such, we find there was sufficient probable cause for the officer to believe that a crime had been committed and that appellant was indeed the perpetrator of that crime. Therefore, appellant's motion to suppress the physical evidence was properly denied.

Appellant next takes issue with the trial court's decision to admit the post-arrest identifications. Appellant first argues that since there was no probable cause for the arrest in the first instance, the post-arrest identifications should be suppressed as the "fruits" of the illegal arrest. Since we have found that there was sufficient probable cause for appellant's arrest, we need not address this contention.

Appellant then argues that the out-of-court identification should be suppressed on the ground that he was denied his right to counsel at the identification procedure. In support of his position, appellant relies on Commonwealth v. Minnis, 312 Pa.Super. 53, 458 A.2d 231 (1983). In Minnis, this Court followed Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974), which states that the right to counsel attaches at the time of an individual's arrest and as such, an individual's right to counsel exists for identification confrontations.

In Minnis we noted that "on-the-scene" identifications has been extended to identifications in hospitals, see Commonwealth v. Aaron, 255 Pa.Super. 289, 386 A.2d 1006 (1979), and to "on-the-scene" identifications a few blocks away from the scene of the crime with the suspect handcuffed in a police van. See Commonwealth v. Allen, 287 Pa.Super. 88, 429 A.2d 1113 (1981). See also Commonwealth v. Dickerson, 226 Pa.Super. 425, 313 A.2d 337 (1973).

The reasoning for broadening the "on-the-scene" requirement was based on dual considerations, namely, the exigent circumstances existing at the time and the minimal amount of suggestiveness surrounding the identification itself, which reduces the likelihood of misidentification. In Minnis, we refused to extend the "on-the-scene" identification to police station identifications where the victim and the witness were called down to the police station one-half hour after the incident to identify the alleged assailant. It is clear that in Minnis there were no exigent circumstances present. Moreover, the rational underlying Minnis was the concern of possible suggestive behavior and conduct attendant to the identification procedure. As the Minnis Court indicated, where a suspect is being held at a police station awaiting the victim's arrival for an identification, there are suggestive influences in that police controlled setting which may not be as prevalent in other situations. We must view the facts of the instant case in light of the underlying rational of Minnis, that is, the exigent circumstances existing at the time of the identification and the amount of suggestiveness existing at the time of identification and its effect upon the likelihood of misidentification.

Our Supreme Court has stated in Commonwealth v. Sexton, 485 Pa. 17, 400 A.2d 1289 (1979), that the key in determining the admissability of an out-of-court identification is not simply the suggestiveness of the circumstances surrounding it but rather the likelihood of misidentification.

It is the likelihood of misidentification which violates a defendant's right to due process and it is this which [is] the basis of the exclusion of the evidence ... Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that...