Commonwealth v. Smith
| Decision Date | 23 November 1983 |
| Docket Number | 1194-1197 |
| Citation | 10 Phila. 186 |
| Parties | Commonwealth v. Ronald Smith |
| Court | Pennsylvania Commonwealth Court |
(1) Probable cause exists to support defendant's arrest warrant because the warrant contains first hand knowledge by two citizen witnesses who saw defendant's crime
(2) Defendant's rights were not violated when officers stopped and searched him with probable cause that defendant committed a crime
(3) Defendant's Miranda rights were not violated by federal officials because defendant fully understood them before waiving them to give various statements about his crime
(4) State and federal officials may properly cooperate in proceeding against defendant for a state offense where defendant is in federal custody pursuant to a warrant, and federal officials question him about the state offense
(5) Defendant's pistol was properly siezed because he consented to it
(6) The evidence is sufficient to convict defendant of possession of an instrument of crime (generally) because it showed circumstantially that defendant had a general criminal intent, notwithstanding the jury's acquittal of defendant on assault charges
(7) Defendant was properly sentenced to 2 1/2 to 5 years incarceration because of his prior criminal conduct and personal background.
Barbara Wright, Assistant District Attorney, for the Commonwealth
Daniel A. Rendine, Esquire, for the Defendant
MEMORANDUM OPINION
Smith was tried before me, with a jury, on charges of aggravated and simple assault and possession of an instrument of crime, generally. He was found not guilty as to the assault charges, guilty as to the P.I.C. charge. [1]
I sentenced Smith to imprisonment of 2 1/2 to 5 years, to be served consecutively with the term of any sentence then being served (Transcript). Smith has appealed.
The alleged incident background of the case was as follows:
Prior to April 23, 1982, Smith had paid his attentions to Gloria McBride of Philadelphia. The girl's brother Jay disapproved and relations between the two men were not friendly. About 9:20 A.M. on April 23, 1982, Smith drove to the McBride residence, called Jay McBride to his automobile and fired approximately five pistol shots at or near McBride, without warning or justification. McBride was wounded in the arm, hospitalized and survived (N.T. November 1, 1982, 8-57).
Investigating the incident subsequently, Philadelphia police learned from the F.B.I. that Smith was wanted as an accused robber of one or more federally insured banks and that one or more federal arrest warrants had issued. The F.B.I. also advised Philadelphia that Smith was believed to be in Atlantic City, New Jersey.
As a result, an informal cooperation and exchange of information developed between Philadelphia and the F.B.I., and the Atlantic City Police were informed of their respective interests in the apprehension of Smith (N.T. October 26, 1982, 3-20).
The factual details and legal status of these cooperative efforts are discussed below.
On May 14, 1982, Atlantic City police arrested Smith as a result of this exchange of information. He was taken before an F.B.I. agent who arrested him on federal charges as to which an arrest warrant had issued and interrogated both as to the McBride incident and various Pennsylvania bank robberies in which the F.B.I. was interested. Statements were taken. Smith's motel room and automobile were searched by the F.B.I. A pistol and other tangible property were seized.
After a hearing pursuant to F.R.Cr.P. 40(a), Smith was transferred to Philadelphia and the local warrant was lodged as a detainer (N.T. October 26, 1982, 17-18, 21-36; October 27, 1982, 39-82).
Smith's Statement of Matters Complained of on Appeal consists of 20 numbered reasons for relief, many containing alternative objections. They fall into these main categories and will be so considered:
a. Alleged errors or illegal conduct of Philadelphia Police and/or judiciary requiring suppression of evidence.
b. Alleged errors or illegal conduct of F.B.I. agents and/or Atlantic City Police requiring suppression of evidence.
c. Alleged trial errors.
d. Alleged error or impropriety as to the P.I.C. conviction.
e. Alleged errors by the court as to sentence.
Smith's contention under this heading is that the probable cause section of the Philadelphia warrant was defective, thus tainting all evidence and information thereafter received in New Jersey. The specific failures are said to have been (i) " failure to show probable cause" and (ii) " inadequate factual basis for reliability (of informants)" .
As to the vague first claim, I can only state that the warrant application (Suppression Exhibit C-1) clearly avers that on a date within the statute of limitations, at a place within the Commonwealth, certain specified acts were committed in criminal violation of cited provisions of Pennsylvania law and that Smith is accused as the perpetrator by the shooting victim and another informant.
Thus after information as to Smith and the offenses charged, the affidavit continues as follows:
2. That the facts tending to establish the grounds for the issuance of the warrant of arrest and the probable cause for my belief are as follows: On Friday 4-23-82, at 8:47 AM, Jay McBride 25 N/M Res. 5445 Springfield Ave. reported to police at approx 8:40 AM as he walked out of his home he observed a Negro male known to him as Ron Smith inside of an auto. Smith called him over to the car and as McBride approached Smith got out of the car and produced a handgun and fired several shots at McBride. McBride was hit with one shot in the right arm above the elbow, and was subsequently treated at Misericordia Hospital by Dr. Mullen. This incident was witnessed by Jay McBride's sister Gloria McBride 16 N/F Res. 5445 Springfield Ave. She was interviewed and related that Ron Smith is her Ex-Boyfriend and she has known him for approx. one year and adds that 21 years old and lives at 5645 Chester Ave. Apt. #5 which is on the 3rd Fl. Front at that address. (sic)
I believe the above facts to be true and correct and believe that probable cause exists for the issuance of an arrest warrant charging Ron Smith with the above mentioned crime.
Affidavit of Probable Cause for Arrest Warrant, Paragraph 2, Suppression Exhibit P-1.
Lacking further explanation of this item it appears to be meritless and that Smith's real attack is on the informant information and other third party statements appearing in the affidavit, both as to content and reliability.
The initial affidavit account is of facts which Jay Smith allegedly reported " to police" . From this phrase it is sufficiently clear that this report was made to other police, not to the affiant.
The affidavit continues to the effect that the defendant's sister " was interviewed", claimed to have " witnessed" this incident and identified the perpetrator as a person known to her. While not exemplary for its precision, this statement asserts with reasonable clarity that Gloria McBride not only was physically present during the event but also corroborated her brother's account of the (" this" ) incident.
This appears to limit the principal thrust of Smith's argument under Aguilar and Spinelli [2] to claims that, within its four corners, the warrant does not state good reasons for reasonable police belief that these uncredentialled, first time informants were reliable and their information indeed was " true and correct" .
Under Aguilar and Spinelli, the Constitutional standard for probable cause in informant situations requires the warrant application to show (i) the basis (direct, hearsay, etc.) of the informant's knowledge as to the matters related to the police, and (ii) sufficient reasons or circumstances supporting the police conclusion that an informant is generally reliable or is at least credible as to the particular incident or information in question.
Here the first requirement was satisfied since both informants had first hand knowledge of the raw facts of the shooting. As to identification, Gloria McBride had known the perpetrator's name and residential address. See, generally, 1 LaFave, Searches and Seizures, Section 3.3(d).
As to reliability or credibility, the affidavit does not indicate that either had been a prior source of information to police. The reliability of their accusations, therefore, had to be evaluated in light of the facts that they respectively were, until the contrary appeared, a blameless victim and an honest citizen cooperating with the police.
The courts have sharply distinguished between the credibility concerns involved in accepting the word of such well-intentioned persons seeking no personal advantage and the questionable motivations of professional police informants or shadowy underworld figures who may be attempting to make deals for themselves by trading information to the police.
The word of the former is apt to be acceptable for probable cause purposes if the victim or bystander is reporting direct, first hand observations.
See, generally, 1 LaFave, op. cit. supra, at section 3.4(a).
The appellate courts of this Commonwealth have granted this preferred credence to victim or bystander information without always emphasizing the basic distinction between the probable public-minded motivation for their reports and the frequently dubious reasons for tips by conventional informants who are underworld police sources.
Thus in Commonwealth v. Hartley, 254 Pa.Super 219, 399 A.2d 745 (1979), probable cause to effect a warrantless arrest existed where the employee of a robbed bar described the event and gave...
To continue reading
Request your trial