Com. v. Sabb

• Decision Date: 19 December 1979
• Citation: Com. v. Sabb, 409 A.2d 437, 269 Pa.Super. 206 (Pa. Super. Ct. 1979)
• Parties: COMMONWEALTH of Pennsylvania v. Vertcell SABB, Appellant.
• Court: Pennsylvania Superior Court

Page 437

409 A.2d 437

269 Pa.Super. 206

COMMONWEALTH of Pennsylvania v. Vertcell SABB, Appellant.

Superior Court of Pennsylvania.

Submitted Sept. 15, 1978.

Filed Aug. 24, 1979.

Petition for Allowance of Appeal Denied Dec. 19, 1979.

Robert B. Mozenter, Philadelphia, for appellant.

Eric B. Henson, Asst. Dist. Atty., for Commonwealth, appellee.

Before PRICE, HESTER and HOFFMAN, JJ.

HESTER, Judge:

On February 16, 1977, appellant Vertcell Sabb was found guilty by a jury of the crimes of simple assault, possession of an instrument of crime, involuntary deviate sexual intercourse, and rape. ¹ Post trial motions were argued and denied and a sentence of four to twelve years imprisonment was imposed. On this direct appeal, appellant assigns as error various rulings of the court below as well as the ineffectiveness of his trial counsel. We find his contentions without merit and will therefore affirm.

Facts adduced at trial established the following: At approximately 3:15 A.M. on July 18, 1976, the complainant, a young artist, was entering her apartment at 437 South Street in Philadelphia. As she unlocked the door to the building and turned to relatch it, a man forced his way in with a knife and told her to shut up. The victim stepped back a pace, put up her hands, and inquired, "What do you want? Money?", to which her assailant replied, "Don't say a word or you'll be cut." At this point, the intruder pulled the victim's hat, sporting a wide brim, over her eyes, and forced her onto the hallway floor where he raped her. Following this, he pulled up her tee-shirt and held the knife against her stomach for several seconds, and then fled. Throughout the ordeal, the intruder repeated the words, "Shut up" in a low, whispered tone with a definite rhythm or cadence described by the complainant as "marked you could almost count, one, two, three, four, five in between his words."

The complainant ran to her room, immediately called the police, and provided them with a description of the assailant. Responding to the call was Officer Michael Lutz of the Philadelphia Police Department. At 3:50 A.M. that same morning, based upon the victim's description, he arrested appellant and another individual in front of Pat's Steaks, an establishment located at 6th and Catherine Streets, three and one-half blocks distant from the scene of the rape. Lutz transported the two suspects to Philadelphia General Hospital, where the victim was by that time being treated. When confronted with these two individuals, she immediately discounted the other male arrested and, after looking at appellant and hearing his voice, stated she was "ninety percent sure" he was the rapist. About an hour and a half later "when (she) had time to calm down a bit and clear (her) head and think of the face and the build" she became one hundred percent certain it was appellant.

Tests at the hospital showed the presence of sperm in the victim's vagina. Similarly, chemical tests of the underwear appellant was wearing at the time of his arrest revealed the presence of seminal stains and sperm.

The defense was alibi. Appellant presented testimony suggesting that sometime before 2:00 A.M. on July 18, 1976, he visited his girlfriend, Gloria Merritt, at her home at 511 South Fifth Street. Miss Merritt was, at that time, experiencing a numbness of her legs, whereupon appellant suggested she go to the hospital. Appellant's father, Emanuel Jackson, agreed to drive them to Pennsylvania Hospital, (8th and Spruce Streets) where the trio arrived sometime between 1:30 A.M. and 2:00 A.M. Appellant sat near the emergency room receptionist's desk, conversing with several individuals, while Miss Merritt was treated by a doctor. Shortly after 3:00 A.M., the examination completed, Miss Merritt and appellant left the hospital and proceeded on foot to Pat's Steaks, a distance of some eight blocks. Appellant had only sufficient time to purchase a sandwich before the police arrived and placed him under arrest at 3:50 A.M. ²

Appellant first contends the police lacked probable cause to arrest him. The test is well-settled. In determining the presence of probable cause, 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. Commonwealth v. Wilder, 461 Pa. 597, 337 A.2d 564 (1975); Commonwealth v. Jackson, 459 Pa. 669, 331 A.2d 189 (1975); Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974); Commonwealth v. Gray, --- Pa.Super. ---, 396 A.2d 790 (1978). In considering probable cause, we deal not with certainties, Commonwealth v. Tolbert, 235 Pa.Super. 227, 341 A.2d 198 (1975), but rather with a common sense determination of reasonableness. Commonwealth v. Hall, 456 Pa. 243, 317 A.2d 891 (1974).

In the instant case, the description supplied by the victim to the police was as follows: Negro male, 5' 7 , 130 lbs., wearing red and yellow plaid shirt, dark pants, small mustache, black, horn-rimmed glasses. Appellant, in large measure matching this description, was arrested less than one-half hour following the rape and only three and one-half blocks distant therefrom. This case thus closely resembles those where our courts have found probable cause based upon a very detailed description or a description coupled with circumstances. See, e. g. Commonwealth v. Powers, 484 Pa. 198, 398 A.2d 1013 (1979) (four or five negro males, one in green army fatigue jacket with hood pulled up, one in white tee-shirt, one 6' 4 tall, a brown overcoat with red knit cap); Commonwealth v. Bynum, --- Pa.Super. ---, 401 A.2d 776 (1979) (two men, one wearing white hat and black coat, one wearing black coat, dungarees, sneakers; suspect arrested only ten minutes walking distance from crime scene); Commonwealth v. Tookes, 236 Pa.Super. 386, 344 A.2d 576 (1975) (Negro male wearing red knit hat and brown leather coat and carrying large object; suspect arrested three blocks from crime scene, 5 or 10 minutes after call); see also, Commonwealth v. Gray, supra; Commonwealth v. Washington, 259 Pa.Super. 407, 393 A.2d 891 (1978); Commonwealth v. King, 247 Pa.Super. 443, 372 A.2d 908 (1977); Commonwealth v. Brown, 230 Pa.Super. 214, 326 A.2d 906 (1974). This is then not a case where a sketchy, meagre description supplied by a victim or witness simply will not support an arrest. See, e. g., Commonwealth v. Sams, 465 Pa. 323, 350 A.2d 788 (1976) (negro males running south on Eleventh St.); Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974) (white male, blondish thinning hair, medium height, "real skinny", 30 years old; suspect arrested far from scene of crime, several days later); Commonwealth v. Ryan, 253 Pa.Super. 92, 384 A.2d 1243 (1978) (negro male, 5' 8 , wearing dark coat); see also, Commonwealth v. Jackson, 459 Pa. 669, 331 A.2d 189 (1975); Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969); cf. Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970). Nor is this a case where the suspect arrested did not match the description supplied to the police. See, e. g., Commonwealth v. Pinney, 474 Pa. 210, 378 A.2d 293 (1977) (police looking for two men: one with long, shaggy, black hair; one 5' 11 , 180 lbs., long thin hair, mark on face; appellant, 5' 7 , 150 lbs., light brown hair, no mark on face, did not sufficiently resemble either suspect number one or two); Commonwealth v. Youngblood, 241 Pa.Super. 72, 359 A.2d 456 (1976) (25 year-old bearded male "eyeballing" store did not sufficiently resemble description of 14 year old youth running from scene of robbery). Appellant in the instant case differed from the police radio description in that he was wearing a hat and a different pair of glasses. Such minor discrepancies can hardly vitiate an otherwise proper arrest. We are satisfied the description, coupled with appellant's proximity in time and place to the crime, provided "that conclusive quality which would necessarily draw attention to a particular individual." Richards, supra, 458 Pa. at 463, 327 A.2d at 67.

Appellant next contends it was error for the court to admit a police photograph of him showing the so-called "Bertillon" information of his height and weight. ³ Apparently, appellant does not object to the introduction of the photograph itself ⁴ but rather to the hearsay nature of the height and weight measurements at the time of arrest, included in the bottom of the picture. Detective Shubert, the officer who directed the investigation and through whom the photograph and accompanying measurements were introduced, testified he did not himself calculate the measurements of appellant and was not present when they were taken. Since the photograph was introduced by the Commonwealth for the purpose of establishing appellant's height and weight at the time of arrest, we agree with appellant, and the Commonwealth concedes, that the information contained in the bottom of the picture is hearsay and thus inadmissible unless falling into a recognized exception. We think the official statement exception provides the appropriate doorway to admissibility:

The policy behind this exception (is) that of avoiding the inconvenience to and disruption of public affairs by requiring public officials to appear in court . . .. For a document to be admissible under the official statement exception "it is necessary that the evidence show that it was prepared pursuant to an official duty." Githens, Rexsamer & Co. v. Wildstein, 428 Pa. 201, 205, 236 A.2d 792, 795 (1968); see V Wigmore, Evidence § 1630, et seq. (3d ed. 1940).

Commonwealth v. Slider, 229 Pa.Super. 93, 96, 323 A.2d 376, 377 (1974); Commonwealth v. Perdok, 411 Pa. 301, 192 A.2d 221 (1963); Commonwealth v. Lee, 244 Pa.Super. 460, 368 A.2d 812 (1976); Feldman, Pa. Trial Guide, § 7.70 (1975). In this Commonwealth, wardens or other officers in charge of prisons are...