Com. v. Roberts

• Decision Date: 31 July 1996
• Citation: 681 A.2d 1274,545 Pa. 460
• Court: Pennsylvania Supreme Court
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Kevin ROBERTS, Appellee.

Page 1274

681 A.2d 1274

545 Pa. 460

COMMONWEALTH of Pennsylvania, Appellant, v. Kevin ROBERTS, Appellee.

Supreme Court of Pennsylvania.

Submitted June 27, 1994.

Decided July 31, 1996.

Robert E. Colville, Dist. Atty., Kevin F. McCarthy, Asst. Dist. Atty., for appellant.

Lester G. Nauhaus, Public Defender, Mitchell A. Kaufman, Asst. Public Defender, for appellee.

Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE, NIGRO, and NEWMAN, JJ.

OPINION

NIX, Chief Justice.

Following a bench trial, Appellee, Kevin Roberts, was convicted of robbery, ¹ criminal conspiracy, ² and possession of an instrument of crime. ³ The trial court denied Appellee's post-verdict motion to modify his sentence and sentenced Appellee to consecutive terms of two (2) to five (5) years' imprisonment for robbery and possession of an instrument of crime and ten (10) years' probation for criminal conspiracy.

On appeal to the Superior Court, Appellee argued that trial counsel was ineffective for failing to file a motion to suppress the victim's identification of him as the fruit of an illegal arrest. Appellee claimed that the arrest was illegal because the arresting officer, a state university campus police officer, lacked jurisdiction to lawfully arrest Appellee outside the physical boundaries of the university property. The Superior Court vacated the judgment of sentence, holding that there was arguable merit to Appellee's underlying claim and that his trial counsel should have filed a motion to suppress the victim's identification of Appellee since university campus police lack jurisdiction to arrest a person off university property. Commonwealth v. Roberts, 428 Pa.Super. 156, 630 A.2d 869 (1993). The Superior Court remanded the matter for an evidentiary hearing to establish whether the robbery and arrest took place on university property. Id.

We granted the Commonwealth's petition for allowance of appeal to resolve the issue of whether an evidentiary hearing is needed to determine whether Appellee's trial counsel was ineffective for failing to move to suppress the victim's identification of Appellee on the basis that the state university campus police officer's arrest of Appellee outside the boundaries of the university property may have been unlawful. Because we find that the identification of Appellee by his victim was not the direct result of Appellee's arrest, regardless of its legality, we reverse the Superior Court's remand of this matter and affirm the trial court's judgment of sentence.

A summary of the evidence establishes that on October 30, 1991, at approximately 1:30 a.m., Appellee and a co-defendant robbed Sean Robertson, a University of Pittsburgh student, at knife point as he walked from campus to his apartment. The victim testified that as he was walking home, Appellee darted in front of him, pulled out a ten to twelve-inch blade kitchen knife from his pants and demanded the victim's money. After the victim responded that he had no money, Appellee's co-defendant checked the victim's jacket and pants' pockets, and took from the victim a pack of Viceroy cigarettes, keys and the victim's student identification. The co-defendant returned the victim's keys before fleeing but kept the victim's cigarettes and student identification. The victim further testified that the robbery occurred in a well-lit area and that the encounter lasted several minutes.

University of Pittsburgh Campus Police Officer Curtis Smith, testified that during the course of the robbery, he was on his routine patrol and passed three individuals on the street in a well-lit area near the university law school. ⁴ Officer Smith testified that the three looked suspicious because of the close manner in which they stood to one another. As he slowed his vehicle to get a closer look, he observed that the victim looked distressed. Consequently, Officer Smith drove approximately twenty-five to fifty yards down the street and then turned around to come back toward the three men. As he approached, Appellee and the co-defendant ran towards Forbes Avenue. The victim informed Officer Smith that the two males had just robbed him at knife point. The victim described Appellee as fair complected with light eyes and wearing a red shirt and blue jeans. The victim described the co-defendant as darker skinned with a mustache, wearing a white shirt and blue jeans. The victim further informed Officer Smith that Appellee and his co-defendant took his student identification and a pack of Viceroy cigarettes.

As Officer Smith drove around the block searching for the robbers, he observed Appellee and his cohort crossing a university parking lot. Officer Smith then pulled his squad car in front of Appellee and the co-defendant and questioned them regarding their encounter with the victim. After searching them, he found the victim's Viceroy cigarettes and the victim's student identification in the co-defendant's possession. Officer Smith found the knife in the campus parking lot approximately forty yards away from where he stopped Appellee and his co-defendant. After arresting Appellee and his co-conspirator, Officer Smith transported them to the campus police station. The victim identified both Appellee and the co-defendant as the perpetrators at the Pittsburgh Campus Police station approximately fifteen minutes after his attack. ⁵ The victim also made a positive in-court identification of Appellee as his attacker.

At trial, Appellee testified that the co-defendant was the person who took the cigarettes and identification from the victim's pockets. Appellee, in contrast, claimed he did not threaten the victim in any way, but he did admit owning the knife which was found in the parking lot. He further admitted that he had the knife tucked into his pants when he was speaking with the victim, and that he intentionally dropped it to the ground upon seeing Officer Smith and his campus security vehicle.

The law is well-settled in Pennsylvania that trial counsel is presumed to have been effective. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981). In order to defeat this presumption and prove a claim of ineffectiveness, a claimant must demonstrate that: (1) the underlying claim is of arguable merit; (2) the particular course of conduct chosen by trial counsel did not have some reasonable basis designed to effectuate the claimant's interests; and (3) counsel's alleged ineffectiveness prejudiced the claimant. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Counsel can never be deemed ineffective for failing to raise a meritless claim. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981).

Appellee contends that counsel was ineffective for failing to file a motion to suppress the victim's identification of him as the fruit of an illegal arrest. With respect to the merit of the underlying claim, we find that the victim's identification of Appellee is legally admissible because it was not the direct result of Appellee's arrest. In Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972), this Court was confronted with the issue of whether the appellant's arrest was illegal and, if so, whether the subsequent identification was tainted by the illegality. Although it was determined that the appellant's arrest was illegal, this Court nevertheless upheld the admissibility of an in-court identification as well as an out-of-court identification that occurred immediately after the appellant was arrested. In so holding, we observed that "[n]o law abiding society could tolerate a presumption that but for the illegal arrest the suspect would never have been required to face his accusors [sic]. Thus, ... the only effect of the illegal arrest was to hasten the inevitable confrontation and not to influence its outcome." Id. at 264, 293 A.2d at 37.

Assuming arguendo that Officer Smith's arrest of Appellee was illegal in the instant case, the identification evidence is nonetheless admissible. The record reveals that an adequate and independent basis existed to support the victim's identification of Appellee. The victim testified that the lighting conditions were good at the time that he was approached by Appellee and the co-defendant. (R.R. at 25a). He also had the opportunity to view the two men for a period of three to five minutes at a distance of only several feet. (R.R. at 26a-27a).

Based on the foregoing, it is apparent that the illegality of the arrest, if any, did not contribute to the knowledge of the witness nor to the accuracy of his identification. As such, we must conclude that counsel was not ineffective for failing to file a motion to suppress the identification of Appellee.

Accordingly, the Order of the Superior Court vacating the judgment of sentence and remanding the matter for an evidentiary hearing is reversed. The trial court's judgment of sentence is reinstated.

CASTILLE, J., files a concurring and dissenting opinion.

NIGRO, J., dissents.

CASTILLE, Justice, concurring and dissenting.

I agree with the result reached by the majority. However, I write separately because I believe that this Court should have resolved the issue upon which it granted allocatur, to wit, whether a duly appointed and qualified state university campus police officer can arrest a person outside the boundaries of the university property upon observing a crime occurring.

I agree with the majority opinion that the victim's identification of appellee as his attacker is admissible based upon this Court's decision in Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972). I further believe that the victim's identification of appellee is admissible on grounds that Officer Smith had lawful authority to arrest appellee. Title 71 P.S. § 646, ¹ which governs the authority and jurisdiction of campus police, provides in pertinent part:

§ 646. (Adm.Code § 2416). Capitol Police, Commonwealth Property Police and Campus Police

The Capitol Police ... and the Security or Campus...