Com. v. Jones

• Decision Date: 01 July 1974
• Citation: 322 A.2d 119,457 Pa. 423
• Parties: COMMONWEALTH of Pennsylvania v. Bruce Eugene JONES, Appellant.
• Court: Pennsylvania Supreme Court

Page 119

322 A.2d 119

457 Pa. 423

COMMONWEALTH of Pennsylvania v. Bruce Eugene JONES, Appellant.

Supreme Court of Pennsylvania.

July 1, 1974.

[457 Pa. 425] Hal F. Doig, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., Maxine J. Stotland, Philadelphia, for appellee.

Before EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

NIX, Justice.

This is a direct appeal after convictions on charges of murder in the first degree burglary, and aggravated robbery. ¹ Appellant raises three issues: (1) That he was arrested without probable cause in violation of the Fourth and Fourteenth Amendments to the United States Constitution and that evidence seized as a result of that arrest was therefore inadmissible at trial; (2) that the confession elicited from appellant was tainted by the illegal arrest and therefore inadmissible; and (3) that the confession was coerced in violation of the Fifth and Fourteenth Amendments to the United States Constitution and was therefore inadmissible at trial.

At approximately 2:30 p.m. on June 25, 1969, Roger Crudup was shot and killed during the robbery of his grocery store at 5416 Westminster Avenue in Philadelphia. A neighbor, Mr. Minor, testified that he saw two boys outside of the store who were joined by three others fleeing from the store. Mr. Minor chased the boys in S.Ct. 1868, 20 L.Ed.2d 889 (1968). See also, Street, and east on Ogden to 52nd Street where three of the boys caught a bus and two fled down an alley. At that point, Officer Green took up the chase until he lost of the officers in this case clearly indicate Brown Streets.

Officer Abrams testified that he received information on the police radio that in view of our holding that probable cause Westminster by 'four or five Negro males between the ages of 17 and 21 in dark clothing' and that the robbers had fled eastward. Officer Abrams observed the appellant, who fit the above description, walking very fast in the 4900 block of Parrish Street, breathing heavily, ² perspiring, and frequently looking over his shoulder. ³ The officer stopped the appellant and asked him where he was coming from. Appellant replied that he had been to a girl friend's house at 53rd and Poplar. Officer Abrams flagged down a patrol wagon manned by Officers Stafford and Chapman. Those officers frisked the appellant prior to ordering him into the police van to be taken to Misercordia Hospital for possible identification by the victim. ⁴ They testified that such a frisk was 'standard procedure' prior to transporting a prisoner. The frisk revealed a .32 caliber ammunition 'clip' which was introduced at trial.

The court below found that the initial officer had probable cause to apprehend the appellant and that the subsequent search was incident to a lawful arrest. We agree. ⁵ Under exigent circumstances, the Fourth Amendment allows a warrantless arrest. However, the arrest must be based upon probable cause. See, McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1966); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Commonwealth v. Kenney, 449 Pa. 562, 565, n.2, 297 A.2d 794 (1972) and cases cited therein. Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972). The crucial test is whether there were facts available at the time of the initial apprehension which would justify a man of reasonable caution in the belief that a crime had been committed and that the individual arrested was the probable perpetrator. McCray v. Illinois, Supra; Ker v. California, Supra; Commonwealth v. DeFleminque, 450 Pa. 163, 299 A.2d 246 (1973); Commonwealth v. Sharpe, 449 Pa. 35, 296 A.2d 519 (1972); Commonwealth v. Brayboy, 431 Pa. 365, 246 A.2d 675 (1968). We have further stated that '(m)ere suspicion is not enough and the burden is upon the Commonwealth to show with reasonable specificity facts sufficient to establish that probable cause existed. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).' Commonwealth v. Holton, 432 Pa. 11, 14--15, 247 A.2d 228, 230 (1968). Here there is no question that the officers had a reasonable basis for believing that a crime had been committed. The issue is whether there was sufficient information available at the time of the apprehension to reasonably justify a belief that appellant was one of the perpetrators.

In dealing with probable cause, we deal with probabilities--the factual and practical considerations of everyday life. Brinegar v. United States, 338 U.S. 160, 175--176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). In this case, the officer had a description of the assailants, albeit an extremely general one. He knew the direction of their flight, and the fact that they were on foot. Under these circumstances, we conclude that he acted reasonably in stopping the appellant six blocks from the scene of the robbery because the appellant fit the description given, was walking extremely quickly, breathing heavily, perspiring profusely and furtively looking over his shoulder.

The appellant's reliance upon Commonwealth v. Pegram, 450 Pa. 590, 301 A.2d 695 (1973) and Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1967) is misplaced. In Pegram, supra, the decision turned on the fact that flight alone is insufficient to supply probable cause. ⁶ Here, the four suspects were actually observed fleeing from the scene of the crime contemporaneously with the discovery of the criminal conduct. Appellant does not nor could he successfully contend that there would have been no cause to arrest those who fled the robbery. The issue is whether the officer who apprehended appellant had sufficient basis to conclude that the person he stopped was one of the original four or five men observed leaving the scene. For the reasons stated above, we conclude that he did have sufficient basis to so conclude.

In Berrios, supra, our concern was the right to restrain for investigation where the officer was acting without probable cause sufficient to justify an arrest. In that case, the Commonwealth had conceded the absence of probable cause and attempted to justify the stop and subsequent search on the basis of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Berrios there was a time lapse of 20 minutes from the time of the receipt of the information to the time that the officers came upon the suspects. Further, there was nothing about the action of those two individuals when seen by the officers that would suggest that they were two of the men who were being sought other than the fact of their race. In this case, moments after the incident and the chase that ensued, this appellant was seen approximately two blocks from the point where he alluded his original pursuers, acting as if he were being chased and having a physical appearance of one who had been running. These facts, coupled with his physical appearance which conformed to the original description, provided adequate basis for the officer to reasonably believe that appellant was one of the perpetrators of the crime. We therefore conclude that the arrest was legal and that the ammunition clip seized incident thereto was admissible at trial. Since we find that appellant's arrest was legal, appellant's complaint that the confession should have been suppressed as a product of an illegal arrest necessarily must fail.

The final contention presented in this appeal is the voluntariness of that written statement. ⁷ The United States Supreme Court has made it clear that there is no simple litmus paper test for determining whether a confession is involuntary. Instead, courts must consider the totality of the circumstances surrounding the confession. Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961). See also, Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968). The burden is on the Commonwealth to demonstrate that the accused's will was not overborne, either through physical or mental pressure and that the statement issued from free choice. Watts v. Indiana, 338 U.S. 49, 69 S.Ct. 1347, 1357, 93 L.Ed. 1801 (1949); Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948); Commonwealth v. Simms, Pa., 317 A.2d 265 (1974) (decided March 25, 1974); Commonwealth v. Alston, Pa., 317 A.2d 229 (1974) (decided March 26, 1974; No. 121 January Term 1973); Commonwealth v. Moore, 454 Pa. 337, 311 A.2d 620 (1973); Commonwealth v. Youngblood, 453 Pa. 225, 307 A.2d 922 (1973); Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973); Commonwealth ex rel. Butler v. Rundle, Supra.

Ordinarily, where the trial court has ruled that the statement of the accused was voluntarily given, our review is limited to a consideration of the testimony of the witnesses offered by the Commonwealth and that portion of the testimony for the appellant which remains uncontradicted. In the case at bar, however, the judge who presided over the suppression hearing died without having rendered findings of fact or conclusions of law. By agreement of counsel, another judge was presented with a full transcript of the proceedings and asked to rule on the pre-trial motions. It was this substitute judge who denied the motions. That decision was of necessity rendered on the same 'cold' record now before this Court by one who had no opportunity to hear the witnesses' testimony and observe their demeanor. In such a situation this Court is equally competent to form an opinion as to the facts from the evidence appearing in the record. See generally, Stanko v. Males, 390 Pa. 281, 135 A.2d 392 (1957); Poelcher v. Poelcher, 366 Pa. 3, 76 A.2d 222 (1950). Having reviewed the record in this case, we agree with the suppression judge that the Commonwealth has met its burden of proving that appellant's will was not overborne and that his statement was...