Com. v. Harper

• Citation: 485 Pa. 572,403 A.2d 536
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Anthony HARPER, Appellant.
• Decision Date: 05 July 1979
• Court: Pennsylvania Supreme Court

Page 536

403 A.2d 536

485 Pa. 572

COMMONWEALTH of Pennsylvania, Appellee, v. Anthony HARPER, Appellant.

Supreme Court of Pennsylvania.

Submitted April 16, 1979.

Decided July 5, 1979.

[485 Pa. 575] Ralph Schwartz, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Victor M. Fortuno, Philadelphia, for appellee.

Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, MANDERINO, LARSEN and FLAHERTY, JJ.

OPINION OF THE COURT

EAGEN, Chief Justice.

On March 3, 1976, appellant, Anthony Harper, was convicted by a jury in the Court of Common Pleas of Philadelphia of murder of the first degree, robbery, possessing instruments of crime-generally, possessing instruments of crime-concealed weapon, and possessing a prohibited offensive weapon. The convictions stem from the September 13, 1975 robbery and fatal shooting of Matthew Boylan. Following the denial of post-verdict motions, a sentence of life imprisonment was imposed on the murder conviction. Prison sentences were also imposed on the robbery conviction (ten to twenty years) and the weapons convictions (two and one-half to five years), ¹ these sentences to run consecutively to the sentence of life imprisonment, but concurrently to one another. Harper filed a direct appeal to this Court from the judgment of sentence on the murder conviction. The judgment of sentence on the robbery and weapons convictions were appealed to the Superior Court which certified that appeal to this Court.

Harper claims the evidence presented at trial is insufficient to support the verdict of the jury. In evaluating the sufficiency of the evidence, the test is whether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt. Commonwealth v. Smith, --- Pa. ---, 398 A.2d 948 (1979); Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977); Commonwealth v. Robinson, 468 Pa. 575, 364 A.2d 665 (1976). The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Commonwealth v. Dawson, 464 Pa. 254, 346 A.2d 545 (1975); Commonwealth v. Alston, 461 Pa. 664, 337 A.2d 597 (1975). Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered, whether or not the trial court's rulings thereon were correct. Commonwealth v. Boyd, 463 Pa. 343, 344 A.2d 864 (1975); Commonwealth v. Tabb, 417 Pa 13, 207 A.2d 884 (1965). Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence. Commonwealth v. Murray, 460 Pa. 605, 334 A.2d 255 (1975).

Viewed in this light, the record reveals the following:

At approximately 11:00 a. m. on September 13, 1975, Harper conversed with Charles Linton, a Commonwealth witness, outside Linton's place of employment, a grocery store located approximately one and one-half city blocks from the scene of the robbery and fatal shooting. Harper had been a customer of the store for a "few years." After conversing with Linton for approximately "three or four minutes," Harper pedalled a red bicycle east on Paschall Avenue towards the scene of the robbery and fatal shooting. ²

Between 11:20 a. m. and 11:25 a. m., Robert Pelligrino, a youngster who resided next door to a grocery store operated by Boylan, entered the victim's store to purchase a soda. Boylan was alone in the store which is located on the northwest corner of Paschall Avenue and Hobson Street. Robert Pelligrino completed the purchase and returned to his home.

Moments later, Harper pedalled the bicycle down Paschall Avenue and turned onto Hobson Street. Robert Pelligrino, who by then had exited his home and was roller skating down Hobson Street, had an unobstructed view of Harper ³ as he turned the corner, stopped the bicycle in front of the victim's store, and walked toward the door of the store.

Ronald Pelligrino, Robert's younger brother, was in Boylan's store making a purchase when Harper entered and placed his right hand in his pocket. The youngster completed his purchase and left the victim and Harper alone in the store. Subsequently, another Commonwealth witness, Thomas Hatala, ⁴ observed Harper pedalling the bicycle in a northerly direction on Hobson Street. Immediately afterwards, Hatala and three friends entered Boylan's store and discovered the victim lying on the floor. Hatala immediately summoned his older brother and the police were ultimately notified.

The police arrived within minutes and summoned a representative of the medical examiner's office to the store. Doctor Robert L. Catherman, Deputy Medical Examiner for the City of Philadelphia, examined Boylan and pronounced him dead. ⁵ While at the victim's store, the police observed signs of a struggle, an open cash register containing only change, and a few dollar bills scattered on the floor. ⁶ Also, the police recovered a loaded .22 caliber pistol, ⁷ a .32 caliber spent shell, and a .32 caliber live round. As a result of the investigation conducted by the police throughout the afternoon of November 13, 1975, Harper became a suspect in the instant case. ⁸

At approximately 6:00 p. m., the police arrested Harper in his residence without an arrest warrant. At the time of his arrest, the officers seized a red ten-speed bicycle which was located in the living room. The police also recovered a .32 caliber automatic pistol which they observed lying outdoors approximately twenty feet from the rear of the house. A subsequent examination by the Philadelphia Firearms Identification Unit revealed that the .32 caliber spent shell recovered from Boylan's store was fired from the .32 caliber automatic pistol recovered from the rear of Harper's residence and that the .32 caliber live round recovered from the store was, at one time, chambered in the .32 caliber automatic pistol recovered near Harper's residence.

After his arrest, Harper was transported to the Police Administration Building where, at approximately 8:10 p. m., he made an inculpatory statement regarding the robbery and fatal shooting. Harper stated that "(he) walked in the store and told (Boylan) to give (him) the money"; that Boylan "reached over and picked up this gun from somewhere"; that Boylan did not shoot, but "just shook the gun at (Harper)"; that Harper "shut (his) eyes and . . . pulled the trigger one time"; that he left the store and went home; and, that he "dropped (his gun) out the back in the yard."

At trial, Harper relied on an alibi defense, namely, that, at the time of the robbery and fatal shooting, he was at his brother's place of employment, a gasoline station located approximately four city blocks from Boylan's store. In support of this defense, he presented the testimony of his brother, his brother's employer, and his father. Harper also presented certain character evidence and attacked the voluntariness of his statement through certain police and medical records which indicated Harper was hospitalized from September 15 to September 18, 1975. ⁹

The foregoing evidence, both direct and circumstantial, when considered in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, is sufficient to support the convictions of murder of the first degree, robbery, possessing instruments of crime-generally, and possessing instruments of crime-concealed weapon. However, the evidence does not support a conviction of possessing a prohibited offensive weapon.

The crime of possessing a prohibited offensive weapon is defined at 18 Pa.C.S.A. § 908. The type of weapon involved instantly, a .32 caliber automatic pistol, is not specifically enumerated in the definition of an offensive weapon. ¹⁰ Therefore, in order to sustain the conviction of possessing a prohibited offensive weapon, we must conclude the .32 caliber automatic pistol is an "other implement for the infliction of serious bodily injury which serves no common lawful purpose." 18 Pa.C.S.A. § 908(c). Such a conclusion is unwarranted. See Commonwealth v. Fisher,--- Pa. ---, 400 A.2d 1284 (1979). See also Commonwealth v. McHarris, 246 Pa.Super. 488, 371 A.2d 941 (1977).

Hence, the judgment of sentence imposed on the conviction of possessing a prohibited offensive weapon must be reversed and the charge dismissed. ¹¹

Harper also claims the inculpatory statement given by him to the police and certain physical evidence seized at the time of his arrest (the bicycle, the .32 caliber automatic pistol, and photographs of Harper ¹²) were the products of an arrest not based on probable cause, ¹³ and, therefore, should not have been admitted into evidence at trial. Prior to trial, a suppression hearing was conducted and the court made extensive findings of fact which are supported by the record. Thus, these findings will not be disturbed by us on appeal. Commonwealth v. Carter, 481 Pa. 495, 393 A.2d 13 (1978); Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977).

The victim, Boylan, was robbed and fatally wounded at approximately 11:35 a. m. on September 13, 1975. Detective Gerrard, who was the supervising detective, arrived at the victim's store at about 12:00 noon. Throughout the afternoon, he and fellow police officers interviewed individuals who were near or at the scene of the robbery and fatal shooting. Two eyewitnesses ¹⁴ told Gerrard they observed a black male enter the victim's store; that they heard a shot; that they observed this same male exit the store; that this male was about five foot eight inches tall, weighed about two hundred fifty pounds, and was wearing a gray sweatshirt; that they observed this same male flee the immediate vicinity on a red ten-speed bicycle which had curled...