Com. v. Moore

• Decision Date: 04 November 1983
• Parties: COMMONWEALTH of Pennsylvania v. Robert MOORE, Appellant. 1155
• Court: Pennsylvania Superior Court

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467 A.2d 862 321 Pa.Super. 1 COMMONWEALTH of Pennsylvania
v.
Robert MOORE, Appellant. 1155 Superior Court of Pennsylvania. Submitted May 2, 1983.
Filed Nov. 4, 1983.

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[321 Pa.Super. 4] Thomas L. McGill, Jr., Philadelphia, for appellant.

Jane Cutler Greenspan, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before CERCONE, P.J., and McEWEN and HOFFMAN, JJ.

HOFFMAN, Judge:

Appellant challenges the legality of his arrest, several trial court rulings, and the effectiveness of counsel. We find these contentions meritless and, accordingly, affirm the order of the lower court.

[321 Pa.Super. 5] Rosenwald's Meat Market was robbed on October 25, 1976, and again on October 29, 1976, by a man wearing white painter's pants and a stocking mask and carrying a sawed-off shotgun. Police arrested appellant at his home on November 15, 1976, pursuant to a warrant, and seized several items, including a stocking mask and white painter's pants, from appellant's bedroom. While in custody, appellant made an inculpatory statement. At a suppression hearing on October 3, 1977, appellant unsuccessfully moved to suppress the confession as well as the stocking mask and painter's pants. ¹ After a jury trial on October 26, 1977, appellant was convicted of the October 29 robbery and sentenced to ten-to-twenty years imprisonment. Appellant's notice of appeal was quashed as untimely. Following appellant's subsequent Post Conviction Hearing Act (PCHA) petition, he was granted the right to request an appeal to this Court nunc pro tunc. This Court allowed the appeal on April 22, 1981.

Appellant contends first that his arrest was illegal because the warrant was not issued upon probable cause. Appellant relies on the two-pronged standard outlined in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). ² The United States Supreme Court, however, has abandoned the Aguilar-Spinelli test in favor of a "totality

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of the circumstances analysis." Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d [321 Pa.Super. 6] 527 (1983). Under the new standard, "the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for ... conclud[ing]' that probable cause existed." Id. at ----, 103 S.Ct. at 2332. The court is to make "a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant's tip[.]" Id. at ---- - ----, 103 S.Ct. at 2329-30. Our Court recently applied Gates in Commonwealth v. Price, --- Pa. Superior Ct. ---, 464 A.2d 1320 (1983). In both Gates and Price, the affidavit was deemed sufficient when based on an anonymous informant's tip corroborated by independent police work. Here, the arrest warrant was issued on the basis of an anonymous informant's tip, a photographic identification, and a description of the suspect. The informant was an eyewitness to the robberies who remained anonymous out of fear of retaliation, but who was later identified and testified at trial. (N.T. October 3, 1977 at 86 and October 25, 1977 at 2.5-2.14). The photographic identification was made by the owner of the meat market who witnessed the robbery. Although the photographic identification was later suppressed on the ground that the showing was impermissibly suggestive, probable cause for arrest may be based upon illegally obtained evidence. Commonwealth v. Turner, 478 Pa. 613, 387 A.2d 657 (1978). Moreover, there was an independent basis for the identification because the owner knew appellant from the neighborhood and recognized him during the robbery. On these facts, there was probable cause for the arrest warrant. ³

[321 Pa.Super. 7] Appellant contends next that his confession should have been suppressed as an involuntarily coerced statement. He argues specifically that he was never taken to the bathroom, told of his...