Com. v. Perretti

• Citation: 20 Mass.App.Ct. 36,477 N.E.2d 1061
• Parties: COMMONWEALTH v. Willie PERRETTI.
• Decision Date: 26 June 1985
• Court: Appeals Court of Massachusetts

Page 1061

477 N.E.2d 1061

20 Mass.App.Ct. 36

COMMONWEALTH v. Willie PERRETTI.

Appeals Court of Massachusetts,

Middlesex.

Argued Jan. 21, 1985.

Decided May 14, 1985.

Further Appellate Review Denied

June 26, 1985.

Patricia A. O'Neill, Committee for Public Counsel Services, Boston, for defendant.

Patricia A. McEvoy, Asst. Dist. Atty., for the Com.

Before ARMSTRONG, CUTTER and PERRETTA, JJ.

PERRETTA, Justice.

The defendant was found guilty by a jury of assault and battery, indecent assault and battery, and breaking and entering a dwelling house in the nighttime with the intent to commit a felony. See G.L. c. 265, § 13A, § 13H, and c. 266, § 15, respectively. On appeal, ¹ he claims error in the trial judge's denial of his motion to suppress his identification and in the jury instructions. We affirm.

I. Facts Relevant to the Motion.

The facts are drawn from the judge's findings, which the defendant does not challenge, supplemented where appropriate by the evidence presented at the hearing on the motion to suppress. At about 12:45 A.M., July 25, 1983, Cambridge police officers Sullivan and Walsh were on patrol duty when they received a radio call that a woman's screams had been heard coming from the second floor of 67 Dana Street. Upon their arrival at that address, the officers went to the second floor, where they were met by the victim. She told the police that, shortly after she had gone to bed, she heard a noise, a light went on, and a man was standing in her bedroom. She struggled with him for several minutes, and he punched her in the groin and upper part of her body. ² The victim was able to free herself from her assailant, run to her window, and scream.

Sullivan testified that the victim described her assailant as a dark-complexioned, white male with brown hair, about eighteen years old, five feet, six inches tall, about 155 pounds, and wearing a dark jacket. The victim was taken to the hospital, and the officers resumed their patrol duty.

Two hours later, about 2:45 A.M., Sullivan and Walsh received a radio call that a suspicious person had been reported at the rear of a dwelling house at 1 Dana Street, approximately three blocks away from the earlier call at 67 Dana Street. This call was also heard by officers Hall and Santos, who were first to arrive at the scene. Hall testified that he saw a man, the defendant, standing about twelve to eighteen inches from an uncurtained window of a basement apartment and that the defendant was peering into the window. His belt was unbuckled, his trousers were unbuttoned and unzipped. He wore no underwear, and his hands were in front of his groin area (the defendant later claimed that he had been urinating). Hall came up from behind the defendant, grabbed him, and turned him over to Santos while he spoke with the woman who had made the suspicious person report.

When Sullivan and Walsh arrived at the scene, just moments after Hall and Santos, Sullivan observed that the man who had been apprehended by Hall was a dark-skinned white male of about 170 pounds, five feet, ten inches tall, in his early twenties, and wearing a dark blue jacket. ³ Hall "patted down" the defendant and found a packet of what he believed to be marijuana. The defendant was arrested for possession of marijuana and peeping and spying. ⁴

In the meantime, based upon his observations of the defendant as he was being apprehended by Hall and Santos, Sullivan returned to 67 Dana Street to speak with the victim and learn if she would be able to identify her assailant. He picked her up at about 3:00 A.M., and called back to Hall who, with Santos and the defendant, had driven his cruiser to a nursing home parking lot across from 1 Dana Street. Upon learning that Sullivan was returning with the victim, Hall removed the defendant's handcuffs, and the three men got out of the cruiser and walked about five feet to the rear of the car, where they awaited the victim's arrival.

Sullivan, the victim, and a male companion, pulled up within minutes, got out of the cruiser, and walked towards the defendant. When the victim was about ten to fifteen feet from the defendant, she became upset, backed away, said that he was her assailant, covered her face with her hands, and turned to her companion. The officers pressed her, stating that she had to be one hundred percent certain. The victim responded that she was.

The judge concluded that, when Hall saw the defendant "peering into the window of a house in the early morning hours with his pants open and in disarray," he had probable cause to arrest him. See Commonwealth v. Gullick, 386 Mass. 278, 283, 435 N.E.2d 348 (1982). Because the victim when attacked, had "ample opportunity to observe her assailant at close quarters with sufficient light and in the familiar surroundings of her own bedroom," and because the confrontation arranged by Sullivan between the victim and the defendant was constitutionally permissible, see Commonwealth v. Coy, 10 Mass.App. 367, 371, 407 N.E.2d 1310 (1980), the judge further concluded that the victim's identification should be allowed in evidence. See generally, Commonwealth v. Howell, 394 Mass. 654, 659-661, 477 N.E.2d 126 (1985).

II. The Identification.

The defendant argues that, although his presence at the rear basement window in the early morning hours was sufficient to justify an investigatory stop of the type authorized under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the police did not have probable cause to arrest him. His arrest, he continues, cannot be predicated upon the discovery of his possession of marijuana because that was found as a result of a search which exceeded permissible limits. See, id., at 22, 88 S.Ct. at 1880; Commonwealth v. Silva, 366 Mass. 402, 405-406, 318 N.E.2d 895 (1974). Characterizing his detention as an investigatory one, the defendant concludes that the detention was impermissibly lengthy and, therefore, his identification by the victim illegal. In the alternative, the defendant attacks the identification as unduly suggestive and unreliable.

a. The defendant's arrest. We do not accept the defendant's premise that his actions were sufficient to justify only an investigatory stop. The defendant was legally arrested, but in so concluding, we do not rely upon the Cambridge ordinance. The defendant is correct in asserting that the ordinance was not put in evidence and must, therefore, be disregarded. See Gaunt v. Board of Appeals of Methuen, 327 Mass. 380, 381, 99 N.E.2d 60 (1951); Lawrence v. Falzarano, 7 Mass.App. 591, 597-598, 389 N.E.2d 435 (1979), rev'd on other grounds, 380 Mass. 18, 402 N.E.2d 1017 (1980). It does not follow, however, that the defendant's arrest must be deemed invalid.

Whether a given set of facts is "sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed," Commonwealth v. Hason, 387 Mass. 169, 174, 439 N.E.2d 251 (1982), quoting from Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925), and Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879 (1940), does not turn on the label attached to those facts by the arresting officer. As stated in Ralph v. Pepersack, 335 F.2d 128, 134 (4th Cir.1964), "To make constitutional questions turn on the term chosen by police officers to describe their activity--officers who are accustomed to the vernacular of the police station and unschooled in the accepted constitutional vocabulary--is to engage in a futile and unwarranted exercise in semantics." Cf. Commonwealth v. Hason, 387 Mass. at 175, 439 N.E.2d 251; Commonwealth v. Colitz, 13 Mass.App. 215, 223-224, 431 N.E.2d 600 (1982). We do not imply or suggest that the police are free to arrest and charge routinely and consider probable cause ex post facto or to expect that we will do so. Our holding is a narrow one: "[W]hen a crime under which the arrest is made and a crime for which probable cause exists are in some fashion related, then there is no question but that there is a valid arrest." Mills v. Wainwright, 415 F.2d 787, 790 (5th Cir.1969). There the court held that the defendant's arrest for vagrancy where no probable cause existed was illegal as a "sham" or "fraud" even though there may have been probable cause to arrest on a charge of breaking and entering. See also 2 LaFave, Search and Seizure, A Treatise on the Fourth Amendment § 5.1(e), and cases collected at nn. 136 & 139 (1985 pocket supplement).

Here the defendant was arrested, irrespective of the official designation of his acts, because he was standing at a rear, uncurtained, apartment window, at an early morning hour, with his trousers open wearing no underwear, and his hands at his groin. Putting aside and disregarding "peeping and spying," the offense of open and gross lewdness and lascivious behavior is a felony. See G.L. c. 272, § 16. ⁵ The judge correctly concluded that there was probable cause to arrest the defendant. ⁶

b. The victim's confrontation. The one-on-one confrontation of the defendant by the victim was not impermissibly suggestive. Although disfavored, such confrontations have been held to be permissible where, as here, they occur promptly after the crime. See Commonwealth v. Barnett, 371 Mass. 87, 92, 354 N.E.2d 879 (1976); Commonwealth v. Coy, 10 Mass.App. at 371, 407 N.E.2d 1310; Commonwealth v. O'Loughlin, 17 Mass.App. 972, 458 N.E.2d 767 (1984). Attempts were made by the police to disguise the fact that the defendant was under arrest, see Commonwealth v. Barnett, 371 Mass. at 93, 354 N.E.2d 879, and, after the victim's initial identification, the police cautioned her that she must be certain. See Commonwealth v. Coy, 10 Mass.App. at 373, 407 N.E.2d 1310. We do not see any impermissible suggestion by the police in advising the victim, when they asked if she would be willing to accompany them, that they had apprehended someone who...