Com. v. Johnson

• Decision Date: 23 October 1981
• Parties: COMMONWEALTH of Pennsylvania v. Steven A. JOHNSON, Appellant.
• Court: Pennsylvania Superior Court

Page 645

436 A.2d 645

291 Pa.Super. 566

COMMONWEALTH of Pennsylvania v. Steven A. JOHNSON, Appellant.

Superior Court of Pennsylvania.

Argued June 12, 1979.

Filed Oct. 23, 1981.

[291 Pa.Super. 572] Sara Duffy, Philadelphia, for appellant.

Denis P. Cohen, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before SPAETH, STRANAHAN and SUGERMAN, JJ. ^*

STRANAHAN, Judge:

This matter is an appeal from the judgment of sentence imposed upon the appellant following his conviction on four counts of robbery, ¹ one count of burglary, ² one count of criminal conspiracy, ³ and one count of possession of an instrument of crime. ⁴ We affirm.

The facts of this case are as follows: At approximately 1:15 p. m. on September 27, 1976, the appellant and Jerome Parks stopped James Dixon as he was leaving the home of Gladys Drayton at 806 South 13th Street, Philadelphia, Pennsylvania. The appellant put a gun to Dixon's head and, with the help of Parks, pushed him back into the Drayton house. Once inside the house, Dixon was taken to the dining room where several people were playing cards at the time. At that point, one of the intruders shouted, "This is a stick-up" and ordered everyone present to lie on the floor. While the appellant continued to hold the gun to Dixon's head, a third man proceeded to rob the people located in the dining room. Those people included Gladys Drayton, Alonzo Hart, Harry McNeal and Dixon. During this time, Parks remained in the dining room hallway behind the appellant and Dixon. Once the robberies were completed, the appellant and Parks ran out of the house. The incident lasted approximately five minutes.

At the time this incident took place, the Drayton house was under surveillance by Detectives Simerson and McGoldrick of the Philadelphia Police Force. They were in plain clothes and in an unmarked car.

Detective Simerson saw the appellant and Parks enter the Drayton house. Approximately five minutes later, both Detective Simerson and Detective McGoldrick saw the appellant running from the Drayton house carrying a .45 caliber revolver and Parks following him. After leaving the house, the appellant and Parks fled on bicycles. Detectives Simerson and McGoldrick started to follow them. At that point, Gladys Drayton ran from the house screaming, "robbery, robbery." As a result, Detectives Simerson and McGoldrick began active pursuit of the appellant and Parks. There was an eight block chase. For a brief period of time, the officers lost sight of the appellant. When the officers overtook the appellant, Detective Simerson flashed his badge in the appellant's direction and shouted, "Police, pull over." The appellant did not. Instead, he pulled out his revolver and swung it at Detective Simerson. The appellant was then forced off his bike and taken into custody by Detectives Simerson and McGoldrick.

After the appellant was taken into custody, he was placed in a police wagon and transported to Broad and Christian Streets, one block from the site of the Drayton robbery. There, Gladys Drayton was waiting. She identified the appellant as "the one who had the gun and was going to kill the baby." This identification occurred within five minutes after the appellant had begun his flight from the Drayton house.

The appellant has raised sixteen issues for the Court's consideration. Those issues are as follows:

1. The appellant contends that the police lacked probable cause to arrest him.

2. The appellant contends that he should have been informed of his Miranda rights as soon as he was taken into custody.

3. The appellant contends that his arrest should have been quashed because he was not promptly arraigned.

4. The appellant contends that the lower court erred in refusing to discharge him pursuant to Pa.R.Crim.P. 1100 where the suppression hearing did not take place until immediately before his trial commenced.

5. The appellant contends that the lower court erred in refusing to suppress the in-court identification testimony of Gladys Drayton, Alonzo Hart, Debra Battles, Detective Simerson and Detective McGoldrick.

6. The appellant contends that the lower court erred in refusing four of his requested points for charge on the question of the reliability of identification testimony.

7. The appellant contends that the trial judge erred in refusing to recuse himself after he had presided over the appellant's suppression hearing.

8. The appellant contends that the lower court erred in refusing to grant his motion for severance.

9. The appellant contends that the lower court erred in refusing to dismiss juror No. 3 after juror No. 4 allegedly told him of her fears of a possible threat to her safety.

10. The appellant contends that the lower court erred in overruling his hearsay objection to the testimony of Debra Battles concerning a statement Jeffery Savage made to the police shortly after the Drayton robbery took place.

11. The appellant contends that the lower court erred in permitting the Commonwealth to cross examine defense witness, Russell McNish, as to McNish's use of heroin at the time the Drayton robbery took place.

12. The appellant contends that the lower court erred in denying him the right to cross examine Detective Steven Posivak in regards to a statement in a police report attributed to James Dixon.

13. The appellant contends that the lower court erred in overruling his objection to the introduction into evidence of the .45 caliber revolver seized from him at the time of his arrest.

14. The appellant contends that the lower court erred in ordering the jurors to initial their verdict slips.

15. The appellant contends that the lower court erred in refusing to grant his request to close after the Commonwealth.

16. The appellant contends that the lower court erred in refusing to grant his motion for a new trial on the basis of after-discovered evidence.

PROBABLE CAUSE

The appellant contends that Detectives Simerson and McGoldrick lacked probable cause to arrest him. In essence, the appellant argues that Detectives Simerson and McGoldrick did not have sufficient information within their possession to warrant a conclusion that the appellant had committed a robbery.

Probable cause to arrest exists where the facts and circumstances within the arresting officer's knowledge are sufficient in themselves to warrant a reasonable man to conclude that an offense has been committed and the person to be arrested has committed that offense. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). The facts and information within the arresting officer's possession used to determine whether or not probable cause existed may be derived from hearsay evidence. Commonwealth v. Bosurgi, supra.

In the case at hand, there is no question that Detectives Simerson and McGoldrick had probable cause to arrest the appellant. They saw the appellant enter the Drayton home with Parks. Five minutes later, they saw appellant run from the Drayton home carrying a .45 caliber revolver and attempt to leave the scene on a bicycle. A few moments later, they saw a woman run from the Drayton home and heard her scream "robbery, robbery." When they tried to stop the appellant, he swung his gun at Detective Simerson. In the opinion of this Court, those facts and circumstances are sufficient in themselves to warrant a reasonable man to conclude that a robbery had been committed and that the appellant had committed that robbery.

MIRANDA WARNING

The appellant contends that he should have been informed of his Miranda rights as soon as he was taken into custody. Since he was not, the appellant argues that his arrest should have been quashed.

There is no requirement that Miranda warnings be given unless and until the police seek to question a suspect. Commonwealth v. Logan, 468 Pa. 424, 364 A.2d 266 (1976).

DELAY IN PRELIMINARY ARRAIGNMENT

The appellant contends that there was an unnecessary delay between the time he was arrested and the time he was preliminarily arraigned. On the basis of that contention, the appellant asserts that his arrest should have been quashed.

There may or may not have been an unnecessary delay between the time the appellant was arrested and the time he was preliminarily arraigned. Even if there was, however, that fact would not require a court to quash the appellant's arrest. Where there has been such a delay, a court must suppress any evidence obtained as a result of the delay. Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). There is no requirement that an arrest be quashed for such a delay.

RULE 1100

The appellant contends that the lower court erred in refusing to discharge him pursuant to Pa.R.Crim.P. 1100 where the suppression hearing did not take place until immediately before his trial commenced. The appellant asserts that he was prejudiced by this situation in that there was no time to transcribe the notes of testimony from the suppression hearing for use by him during his cross examination of the Commonwealth's witnesses.

Initially, the Court must point out that the appellant has raised the wrong issue. The appellant does not contend that he was not brought to trial within 180 days after the criminal complaint was filed. The appellant merely asserts that he was prejudiced by the timing of the suppression hearing in relation to the start of his trial. Hence, the issue the appellant should have raised and the issue the Court will consider is whether or not the lower court abused its discretion in denying the appellant's motion for a continuance.

The refusal to grant a continuance to enable defense counsel to obtain a transcript of the suppression hearing for use in cross examination at trial is grounds for reversal only when a defendant can show that he was actually prejudiced by that refusal. Commonwealth v. McKelvie, 471 Pa. 541, 370 A.2d 1155 (1977).

The appellant has neither alleged nor shown that he was actually prejudiced by the lower court's refusal to grant a...