Commonwealth v. Rose

• Decision Date: 24 January 1979
• Citation: 396 A.2d 1221,483 Pa. 382
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Randolph ROSE, Appellant.
• Court: Pennsylvania Supreme Court

396 A.2d 1221

483 Pa. 382

COMMONWEALTH of Pennsylvania, Appellee, v. Randolph ROSE, Appellant.

Supreme Court of Pennsylvania.

January 24, 1979

Submitted Oct. 19, 1978.

Nicholas J. Nastasi, Philadelphia, for appellant.

Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist Atty., Robert B. Lawler, Chief, Appeals Div., Paul S Diamond, Asst. Dist. Attys., for appellee.

Before EAGEN C. J., and ROBERTS, NIX, MANDERINO and LARSEN, JJ.

OPINION OF THE COURT

EAGEN, Chief Justice.

On January 30, 1976, appellant, Randolph Rose, was convicted by a jury in Philadelphia of murder of the second degree and of robbery. Following a denial of post-verdict motions, a sentence of life imprisonment was imposed on the murder conviction. A prison sentence of ten to twenty years was imposed on the robbery conviction, such sentence to be served consecutively to the sentence of life imprisonment. Rose filed a direct appeal in this Court from the judgment of sentence on the murder conviction. The judgment of sentence on the robbery conviction was appealed to the Superior Court which certified that appeal to this Court.

Rose advances numerous assignments of error in support of reversal of the judgments. The judgments of sentence will be affirmed.

The record establishes the following:

Between 12:00 a. m. and 12:30 a. m. on August 8, 1975, Robert Edwards was found shot in the back on a street near 41st and Powelton Avenue in West Philadelphia. According to Edwards, he was approached from the rear by a man who, placing a pistol against Edwards' left temple, demanded money. As Edwards complied and handed.$7.00 to his assailant, he heard a gun go off, attempted to escape, and realized he had been shot in the back. He fell to the sidewalk with his head facing in the direction of a street light located approximately ten feet away. His assailant stopped under the street light and faced Edwards for a period of about ten seconds, during which time Edwards was able to observe him. At trial, Edwards identified Randolph Rose as the man who robbed and shot him.

At about 1:20 a. m. the same day, Russell A. Leary, who had been shot in the back, was discovered lying on the sidewalk near 40th and Ludlow Streets in Philadelphia. On the sidewalk in the vicinity of the victim were strewn his personal effects, i. e., his leather key case, cigarette lighter, and wallet. Mr. Leary was transported to Philadelphia General Hospital where, at 2:20 a. m., he was pronounced dead.

An autopsy performed on Leary's body by Dr. Robert J. Segal, Assistant Medical Examiner for the City of Philadelphia, revealed the cause of death was a single bullet wound of the back which caused injury to the lungs, liver, abdomen, and inferior vena cava (a large vein leading to the heart). A .32 caliber bullet was removed from the body. Dr. Segal testified that, based on his experience and training, in his opinion the firearm which caused the injury had been held a distance of one-half to one inch from Leary's back when it was fired. The bullet, upon removal from Leary's body, was immediately rushed to the Ballistics Laboratory at the Police Administration Building by Detective William Brown, who was present during the autopsy, and submitted to ballistics tests.

At approximately 1:30 a. m. on the same day, Gary Crosley was approached near 13th and Filbert Streets in Philadelphia by a man wanting to sell him a wrist watch for ten dollars. Crosley expressed disinterest in the watch, but, as the two were walking in the same direction, conversation developed. Deciding to stop for coffee, they proceeded to the Trailways Bus Terminal at 13th and Arch Streets. The two men remained at the terminal some two to three hours and engaged in conversation while seated across the table from one another in a well-lit area.

Sometime around 5:00 a. m., Crosley became tired and decided to walk to the subway to make his way home. His companion followed and, once inside the subway station, demanded that Crosley give him money. After Crosley explained he had only enough money for subway fare to his home, his companion produced a revolver. He fired the gun at Crosley who, in fear, had begun running towards the subway terminal steps. A bullet struck Crosley in the nape of the neck.

Though injured, Crosley continued his escape a short distance to City Hall Annex where a guard summoned police assistance. Within moments, Officer James Feldmayer arrived by patrol car at the Annex and immediately transported Crosley to Hahnemann Hospital for emergency treatment. En route to the hospital, Crosley was able to provide Officer Feldmayer with a description of his assailant. The description was immediately broadcast over police radio. ^[1]

Officer Robert Hinkel, also in a police patrol car in the area, received the description provided by Crosley as he was patrolling in the area of 13th and Market Streets. In less than one to one and one-half minutes after receiving the radioed description, Hinkel, as he turned north on 13 Street, observed two men walking south on 13th Street from Commerce Street. One of the men, namely, Randolph Rose, matched the description. Hinkel immediately confronted the two men and, as the result of a search, discovered Rose had in his possession a chrome plated .32 caliber five-shot revolver containing one spent shall casing and four live rounds of ammunition. The revolver and shells were immediately sent to the Ballistics Laboratory at the Police Administration Building for testing.

Randolph Rose and the person with whom he had been walking were immediately taken into custody in connection with the Crosley shooting and transported by police to Hahnemann Hospital. Within eight to ten minutes after the shooting, Rose and his companion were brought before Crosley as he lay in the emergency room of the hospital awaiting treatment. Crosley unequivocally identified Rose as his assailant. Thereafter, Rose was transported to the Police Administration Building.

At 5:45 a. m., after Crosley had identified him, Rose was charged with the Crosley shooting. He was given the warnings mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), (hereinafter: Miranda ), by Detective James O'Hara. Rose stated: "I don't want to make any statements or sign any papers. That's it." All interrogation ceased at that point.

At 7:50 a. m., after police became aware of similarities in the Leary and Crosley incidents, Rose was transferred to the Homicide Division where he was placed in a cell. At 9:45 a. m., he was taken from his cell to an interview room in the Police Administration Building. He was informed that the police were awaiting results of ballistics tests of the bullet removed from the body of Russell Leary and that, due to similarities in the shootings, he would be questioned regarding the Leary killing.

At 10:30 a. m., he was given a cigarette, coffee, and an egg sandwich. Meanwhile, the .32 caliber bullet, which had lodged in Crosley's head behind his left ear, was removed at Hahnemann Hospital and taken to the Ballistics Laboratory at the Police Administration Building for testing.

The bullet removed from Mr. Crosley's head and the bullet which caused Leary's death were examined by Mr. Anthony Paul, Supervisor of the Firearms Identification Unit of the Philadelphia Ballistics Laboratory. Microscopic examination revealed the bullets were fired from the same weapon. Further tests revealed the chrome plated .32 caliber five-shot revolver taken in the search of Randolph Rose was the weapon used in each shooting.

At 11:45 a. m., the results of the ballistics tests became known to police, and Rose was advised he was now charged with the Leary homicide. When confronted with the new charges against him and the results of the ballistics tests, Rose was again given Miranda warnings and, contrary to his previous disposition, waived his rights and provided police with a statement in which he confessed to the Leary slaying. Rose was tried and convicted of the robbery and homicide of Russell Leary.

Rose argues the court below erred in failing to suppress testimony regarding the "two-on-one" identification of Rose by Crosley at the hospital and the 11:45 a. m. statement made by him. ^[2] The facts in the instant case are strikingly similar to those in United States ex rel. Tyrrell v. Jeffes, 420 F.Supp. 256 (E.D.Pa.1976), cert. denied, 430 U.S. 958, 97 S.Ct. 1606, 51 L.Ed.2d 808 (hereinafter: Tyrrell ). In Tyrrell, a police officer was shot in the head in the early morning while investigating a robbery. He was taken to a hospital. Before the officer's physical condition was ascertained, Tyrrell, the suspect, was also taken to the hospital at 6:00 a. m., and, in a "one-on-one" showing, the police officer identified Tyrrell as his assailant. In ruling testimony recounting the "one-on-one" identification admissible, the District Court for the Eastern District of Pennsylvania, considering the "totality of the circumstances" ^[3] surrounding the identification, stated:

"(i)t would be crucial to know whether the suspect, whose only connection with the crime was (a) radioed description . . . was in fact the assailant, in order to enable the police to decide whether to continue the investigation. Any delay for the purpose of obtaining participants for a regular lineup would have been excessive, particularly given the hour and the day. It would have been difficult to obtain counsel at that moment, and the (victim) could not have been expected to be able to attend a lineup in his physical condition. Moreover, the uncertainty of his physical condition was another legitimate factor to be weighed in deciding upon the procedure which was adopted." Tyrrell, supra at 264.

In the...