Com. v. Pytak

• Decision Date: 29 October 1980
• Citation: 420 A.2d 640,278 Pa.Super. 476
• Parties: COMMONWEALTH of Pennsylvania v. Harry P. PYTAK, Appellant.
• Court: Pennsylvania Superior Court

Page 640

420 A.2d 640

278 Pa.Super. 476

COMMONWEALTH of Pennsylvania v. Harry P. PYTAK, Appellant.

Superior Court of Pennsylvania.

Argued June 6, 1979.

Filed June 20, 1980.

Petition for Allowance of Appeal Denied Oct. 29, 1980.

Carol McGinley, Asst. Public Defender, Allentown, for appellant.

Scott K. Oberholtzer, Asst. Dist. Atty., Allentown, for Commonwealth, appellee.

Before PRICE, GATES and DOWLING, JJ. ^*

PRICE, Judge:

Appellant was tried before a jury and convicted on September 20, 1977, of kidnapping ¹ and robbery. ² He filed post-verdict motions for a new trial and in arrest of judgment, which were denied by the court en banc. He takes this appeal alleging that the trial court erred in failing to suppress items seized as a result of an illegal search and in failing to grant his motion for a mistrial following allegedly prejudicial testimony concerning identification from a photographic array. Since we find that these contentions lack merit, we affirm the judgment of sentence.

The following facts were adduced at trial. On the morning of December 11, 1976, a car with two male occupants pulled into Miller's Mobil Station and was serviced by James Mulqueen, an attendant. The car was driven away, but returned a few minutes later. The two occupants exited the car and entered the station. At gun point they took $100 from the cash register, and a watch and cash that Mulqueen had in his possession. They then forced Mulqueen into the car and drove off. Eventually, Mulqueen was released near Tamaqua, Pennsylvania.

Appellant's arrest was accomplished as a result of the following sequence of events that were revealed at the suppression hearing. On December 16, 1976, at about 10:30 a. m., State Trooper Stephen Sepkowski of the Pottsville substation went to the Schuylkill County Prison and received a written statement from one Christine Stephany that implicated her husband and appellant in a burglary and auto theft that had occurred in Schuylkill County. ³ Later, during the same morning, Trooper Sepkowski was contacted by Patrolman Toby Harbst of the South Whitehall Police Department, Lehigh County, and informed that felony warrants for kidnapping and robbery had been issued for appellant's arrest. Patrolman Harbst expected to arrive at the Pottsville substation by 1:00 p. m. that day and requested help in serving the warrants. At approximately 11:45 a. m. a confidential informant contacted Trooper Sepkowski and stated that appellant planned to sell his automobile at 1:00 p. m. on that day and then leave the area. This informant had, on one prior occasion, supplied the police with information that proved to be true.

At this point, Trooper Sepkowski attempted to contact a magistrate to procure a warrant for appellant's arrest, but learned that the magistrate was at lunch. The officer was unable to contact him at the restaurant the magistrate sometimes frequented, and he decided to proceed without a warrant. Accompanied by three other officers, Trooper Sepkowski went to appellant's residence. Before entering, he observed appellant's car outside the building and noted that the front and rear floors of the vehicle were cleaner than he had observed them on previous occasions. He knocked on the door, and appellant answered and allowed the officers to enter. Trooper Sepkowski read him his rights and informed him that he was being arrested for burglary and auto theft. After explaining this, Trooper Sepkowski noticed a watch hanging from a nail in a nearby wall of the apartment. It fit the description Patrolman Harbst had previously given him of a watch taken during a robbery and kidnapping that he was investigating, in which appellant was mentioned as a suspect. Trooper Sepkowski obtained appellant's signature on a consent to search form and seized the watch, which he subsequently turned over to Patrolman Harbst. It was later identified as the one taken in the Lehigh County robbery.

Appellant objects that this watch was illegally seized and inadmissible at trial because it was the product of a search following an illegal arrest. He claims that there was insufficient probable cause to support the arrest and, in any event, that a warrantless arrest in his home was not justified. We disagree.

Probable cause to arrest exists if the facts and circumstances within the officer's knowledge have been gained by reasonably trustworthy means and are sufficient to warrant a man of reasonable caution to believe that the suspect has committed or is committing a crime. Commonwealth v. Murray, 437 Pa. 326, 263 A.2d 886 (1970); Commonwealth v. Marino, 435 Pa. 245, 255 A.2d 911 (1969), cert. denied, 397 U.S. 1077, 90 S.Ct. 1526, 25 L.Ed.2d 811 (1970). We are mindful that we should not assess the sufficiency of the officer's information as legal technicians examining the situation in retrospect, but rather that the concept of probable cause involves dealing with probabilities arising from the practical considerations of everyday life upon which prudent men rely. Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974); Commonwealth v. Donnelly, 233 Pa.Super. 396, 336 A.2d 632 (1975).

Trooper Sepkowski was entitled to rely on Patrolman Harbst's statement that he had procured a warrant for appellant's arrest and could assume from that statement that Patrolman Harbst had offered the magistrate sufficient information to support an independent judicial assessment of probable cause. Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971). However, in relying on the summary assertions of another officer, he could acquire no greater authority than could be exercised by that officer, and the arrest is unlawful unless the instigating officer did, in fact, have probable cause to make the arrest. United States v. Miles, 468 F.2d 482 (3d Cir. 1972); Commonwealth v. Whitson, 461 Pa. 101, 334 A.2d 653 (1975).

The testimony of Patrolman Harbst at the suppression hearing demonstrates that he had clear probable cause to make an arrest. ⁴ He had received a statement from an accomplice's wife, Ms. Stephany, that appellant and her husband had returned home with a sum of money a few hours after the occurrence of the offense. She repeated their remark that they had "pulled a job" near Allentown and had taken the gas station attendant with them in the car. Patrolman Harbst had a substantial basis for crediting this hearsay testimony. See United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); Commonwealth v. Falk, 221 Pa.Super. 43, 290 A.2d 125 (1972). The statement was made on the basis of acts and admissions that the informant had personally witnessed. As the wife of an accomplice, she was likely to be in a position to observe such behavior. Furthermore, the revelation of the source of this information by name is a fact to be considered in determining the reliability of the informant because it indicates that she is not a paid informer and not immune from prosecution for giving false information. Commonwealth v. Stokes, 480 Pa. 38, 389 A.2d 74 (1978); Commonwealth v. Falk, supra.

Of particular importance in determining the credibility of this information is the corroboration of Ms. Stephany's story by other sources. United States v. Harris, supra; see Commonwealth v. Falk, supra. The victim, James Mulqueen, identified appellant from a series of photographs as one of the perpetrators of these offenses, thus confirming his participation. Indeed, identification of the suspect by the victim may, of itself, be sufficient to supply probable cause for arrest. See Commonwealth v. Hall, 456 Pa. 243, 317 A.2d 891 (1974); Commonwealth v. Wiggins, 239 Pa.Super. 256, 361 A.2d 750 (1976). Clearly, the knowledge possessed by Patrolman Harbst was sufficient to support the arrest made by Trooper Sepkowski.

Appellant argues that Trooper Sepkowski was acting on his own initiative and points to the fact that in making the arrest, he only informed appellant of the charges in Schuylkill County and not the robbery and kidnapping. For the validity of an arrest to be upheld, however, it is not necessary that the accused be informed at the time of making the arrest of its cause if he knows that the arresting officials are police officials. Commonwealth v. Negri, 414 Pa. 21, 198 A.2d 595 (1964). Therefore, Trooper Sepkowski's failure to notify appellant of the instant charges did not invalidate the arrest. The facts are still clear that prior to the arrest Trooper Sepkowski had sufficient information within his knowledge to believe that appellant had committed a crime and did not independently initiate the arrest without probable cause. To the contrary, Patrolman Harbst's contact requesting aid was a major impetus to make this arrest. To fail to uphold the arrest in these circumstances would seriously hamper cooperation between the police of different jurisdictions and undermine effective enforcement of the law. ⁵

Although we have determined that the arrest was made upon sufficient probable cause, our inquiry is not ended. Since the arrest was made at appellant's home without a warrant, the intrusion must be justified by a showing of exigency. ⁶ Commonwealth v. Wagner, 486 Pa. 548, 406 A.2d 1026 (1979); Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978). In Williams, the supreme court enumerated the following considerations in determining whether exigent circumstances existed: (1) whether a grave offense was involved, particularly one of violence; (2) whether the suspect was reasonably believed to be armed; (3) whether there was a clear showing of probable cause, rather than a minimal showing of probable cause, to believe the suspect committed the crime; (4) whether there was strong reason to believe the suspect was on the premises being entered; (5) whether there is a likelihood that the suspect will escape if not swiftly apprehended; (6) whether the entry was made peaceably; and (7) whether the...