Com. v. Capers

• Decision Date: 08 March 1985
• Citation: 489 A.2d 879,340 Pa.Super. 136
• Parties: COMMONWEALTH of Pennsylvania v. Larry CAPERS, Appellant.
• Court: Pennsylvania Superior Court

Page 879

489 A.2d 879

340 Pa.Super. 136

COMMONWEALTH of Pennsylvania v. Larry CAPERS, Appellant.

Superior Court of Pennsylvania.

Submitted Sept. 17, 1984.

Filed March 8, 1985.

Douglas M. Johnson, Asst. Public Defender, Thorndale, for appellant.

J. William Ditter, III, Asst. Dist. Atty., Norristown, for Commonwealth, appellee.

Before CAVANAUGH, WIEAND and MONTGOMERY, JJ.

WIEAND, Judge:

On March 1, 1982, at or about 1:45 p.m., a man pushed his way at knifepoint into a Lakeside apartment in Cheltenham, Montgomery County. There he blindfolded, bound, undressed, assaulted, terrorized and robbed the female occupant. When the intruder left about 3:05 p.m., the occupant was able to free herself and call the police. She described her assailant as a negro male, approximately five feet, seven inches in height, stocky, light skinned, having dark eyes and eyebrows, and wearing a gray jacket. The description, except for the dark eyes and eyebrows, was broadcast.

The broadcast was heard by Henry Schramm and Harrison Marsteller, members of the Philadelphia Police Department, who were on routine patrol in the City of Philadelphia, approximately five blocks from the Lakeside Apartments. At or about 3:30 p.m., they observed a black male, later identified as Larry Capers, running toward them from the direction of Cheltenham. Because the man matched the description which had been broadcast by police radio, the police stopped him. He was sweating profusely, was out of breath, had blood on one hand and was carrying a plastic bag. A pat down of Capers' outer clothing revealed a hard object which, upon withdrawal, proved to be a folding knife with five inch blade. Red stained linens were found inside the bag which Capers had been carrying.

Capers was placed under arrest and returned by police van to the Lakeside Apartments. The victim of the earlier crimes refused to allow Capers into her apartment, but while he stood outside and she looked through a window, she was able to identify Capers as her assailant. She also identified the knife which had been removed from Capers' person and the gray jacket which he had been wearing at the time of the crime.

Capers was tried nonjury and was found guilty of robbery, ¹ simple assault, ² indecent assault, ³ terroristic threats, ⁴ recklessly endangering another person, ⁵ theft of moveable property, ⁶ and possession of an instrument of crime with intent to employ it criminally. ⁷ He was sentenced to a term of imprisonment for seven to fifteen years on the robbery conviction and to a consecutive term of one to three years for possession of an instrument of crime. Sentence for indecent assault was suspended. On direct appeal, Capers contends that various items of physical evidence, including the knife, were products of an illegal arrest and/or unlawful search and should, therefore, have been suppressed. He also contends that the on-the-scene identification by the victim was unduly suggestive, that he did not voluntarily and intelligently waive his right to be tried by a jury, that the evidence was insufficient to sustain a conviction for indecent assault, and that his sentence was excessive. There is no merit in any of these contentions. However, the indefinitely suspended sentence for indecent assault was invalid and will be vacated.

If police have reasonable suspicion that criminal activity is afoot, they may make a temporary, investigatory stop even though they lack probable cause to make an arrest. Commonwealth v. O'Neal, 321 Pa.Super. 323, 325, 468 A.2d 500, 502 (1983). If the police reasonably believe their safety is in jeopardy, a limited search for weapons is justified. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). If incriminating evidence establishing probable cause for arrest is discovered after the temporary stop, a lawful arrest may then be made. Commonwealth v. Webster, 291 Pa.Super. 271, 276-277, 435 A.2d 1217, 1219-1220 (1981).

We agree with the suppression court that the temporary stop and subsequent arrest of Capers in this case were lawful. The information available to the police justified at least an investigatory stop. Moreover, a weapons search was warranted because the investigating police knew that the perpetrator of the robbery had been armed with a knife. Because the plastic bag was easily within Capers reach, it was also proper to examine it for a weapon. By the time Capers was placed under arrest, the police clearly had probable cause therefor. The suppression court properly refused to suppress the knife removed from Capers' person, the red stained linen removed from the bag, and other physical evidence seized by the police. These items could properly be used as evidence.

The victim's identification of Capers was also admissible. Prompt on-the-scene identifications are generally deemed reliable and not subject to suppression in the absence of a special element of unfairness. Commonwealth v. O'Neal, supra at 327, 468 A.2d at 503. Although the victim in this case had been able to see her attacker only for a brief period as he pushed her into the apartment, she had been able to give the police an accurate description of him. She testified that when Capers was returned to her apartment she recognized him "from the jacket that he was wearing, and from his facial description, because he had the same eyes, eyebrows, and his coloring, the same height--it was the same man." Her identification was positive. The suppression court did not err in refusing to suppress the on-the-scene identification or the in-court identification.

Capers does not direct us to any specific facts to support the contention that his waiver of jury trial was involuntary. Our review of the extensive waiver colloquy does not disclose any deficiency or suggest an involuntary waiver. Therefore, we reject Capers' contention that his decision to waive jury trial was involuntary.

In support of his contention that the evidence does not support a conviction for indecent assault, Capers argues that there was a failure of evidence to show that his acts were committed to arouse or gratify sexual desire on the part of himself or his victim. He contends...