Commonwealth v. Wilson
| Decision Date | 04 May 1983 |
| Docket Number | 1233-1235 |
| Citation | 9 Phila. 222 |
| Parties | Commonwealth v. Anthony Wilson |
| Court | Pennsylvania Commonwealth Court |
(1) Defendant is entitled to discharge under Pa. R. Crim. Pro Rule 314 where the case involves no force or threats, the aggrieved party has a civil remedy, and the public interest would not be materially affected
(2) Defendant was not entitled to a discharge under Pa. R. Crim Pro. Rule 314 because the case involved use of force and the public safety would be threatened
(3) Statements made to the Commonwealth's investigator to prove that a person does not exist or reside in the area are admissible over hearsay objection
(4) Whether photographic exhibits should be admitted or sent out with the jury are questions in the trial court's sound discretion
(5) The evidence is sufficient to convict defendant of burglary and criminal conspiracy where witnesses saw defendant trying to break open the door of a house, and saw defendant and a companion take stereo equipment.
Charles Cunningham, Esquire, for the Commonwealth
Paul Conway, Esquire, for the Defendant
On May 17, 1982, a jury found defendant guilty of burglary [1] and criminal conspiracy. [2] On October 19, 1982, the Court denied defendant's post-trial motions and imposed the following sentence consecutive to anything presently being served:
1) Information #1233 -- Burglary -- (First degree felony) -- four (4) to ten (10) years incarceration.
2) Information #1235 -- Criminal Conspiracy -- (Second degree felony) -- ten (10) years probation consecutive to burglary sentence.
On November 23, 1981, Nathaniel Walter saw defendant trying to open the door at premises 3111 North Percy Street, Philadelphia, between 2:00 and 2:15 P.M. (N.T., 5/14/82, 491-493, 498-500). Mr. Walter who lived next door at 3109 North Percy Street and was then taking his wife to work (N.T., 5/14/82, 491, 493-494), recognized defendant and suspected that a burglary might be afoot but did not intrude because he felt that the fact of his presence would deter defendant from any criminal activity (N.T., 5/14/82, 495-497, 509, 516).
After Mr. Walter returned to the area, he noticed that the door in question had, indeed, been broken open (N.T., 5/14/82, 500-501). Mr. Walter went to his home and asked his stepson Darryl Howard why he had not called the police (N.T., 5/14/82, 501, 511-515, 574). Both Mr. Walter and his stepson knew defendant as " Spike" and the stepson had seen defendant and a girl leaving the back door with a stereo set and speakers (N.T., 5/14/82, 566-574). When the owner John Lester Jackson returned home, he found that his house was burglarized and his stereo was missing. He was informed of the incident by Mr. Walter and he called the police who arrived shortly (N.T., 5/14/82, 449-460, 502, 518-519). Defendant was apprehended by Detective Hoover pursuant to an arrest warrant and gave a written statement in which he admitted that the crime took place but stated that he was only an accomplice (N.T., 5/14/82, 608-618; 5/17/82, 654-660). Defendant claimed that he served as a lookout for twenty ($20.00) dollars while Wayne Bowers, an alleged neighbor, took the stereo (N.T., 5/14/82, 615).
At trial, defendant offered three (3) photographic exhibits of the crime scene (Exhibits D-1, D-2 & D-3) but only one (1) accurately depicted the area in question at the time of the crime and was received into evidence (See Exhibit D-1; N.T., 5/14/82, 468; 5/17/82, 701).
Defendant contends that this Court erred in denying his motion to suppress his out-of-court statement because the Commonwealth did not establish his time of arrest under Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), and because his arrest was illegal. These contentions are meritless. 1. Violation of Commonwealth v. Davenport
Commonwealth v. Davenport, supra, held that if defendant is not arraigned within six hours of arrest, inculpatory statements made by him after arrest and before arraignment are inadmissible at trial. The Commonwealth carries the burden to establish a lawful arrest and arraignment within six hours. Id. Defendant argues that Davenport was violated because the Commonwealth did not establish on the record the time of arrest, but this argument is contrary to the record.
Detective Hoover testified that he arrested defendant between 12:15 P.M. and 12:30 P.M. on November 25, 1981 (N.T., Motion to Suppress, 5/12/82, 109-112). It was stipulated that defendant was arraigned at 5:50 P.M. on November 25, 1981 (N.T., Motion to Suppress, 5/12/82, 160-161). Accordingly, defendant was arraigned within six hours of his arrest.
2. Illegal Arrest
Defendant contends that his arrest was without probable cause because of an alleged material misstatement of fact in the arrest warrant's supporting affidavit, namely, the statement that Mr. Walter had seen defendant carrying stereo equipment from the house when in fact only Mr. Walter's stepson, Mr. Darryl Howard, had seen this. See N.T., Motion to Suppress, 5/11/82, 27-28, 43-44, 76-78; Post-verdict Motion, 10/19/82, 6-11; Exhibit C-1 (probable cause affidavit).
In Pennsylvania, an arrest warrant may be issued only upon a showing of probable cause supported by one or more affidavits, and no evidence outside of the affidavits may be considered when the warrant is challenged for lack of probable cause. See Pa. R. Crim. Pro. Rule 119. [3] But warrants are read in a sympathetic and common sense manner with due regard for the hectic conditions under which they are often prepared, and marginal cases are decided in favor of the warrant's validity. United States v. Ventresca, 380 U.S. 102 (1965); Commonwealth v. Jefferson, 271 Pa.Super 199, 412 A.2d 882 (1979); Commonwealth v. Billock, 221 Pa.Super 441, 289 A.2d 749 (1972). Further, in determining whether a misstatement in an affidavit is material, the test is not whether the misstatement strengthens probable cause but rather whether it is essential to it, which is then ascertained by deleting the misstatement and evaluating the affidavit again for probable cause. Commonwealth v. Yucknevage, 257 Pa.Super 19, 390 A.2d 225 (1978); Commonwealth v. Tucker, 252 Pa.Super 594, 384 A.2d 938 (1978).
The instant affidavit clearly showed probable cause because it stated that the affiant police officer knew that the complainant's house was burglarized and that defendant was observed leaving the complainant's house with his stereo. See Exhibit C-1 (probable cause affidavit). The statement that Mr. Walter had seen defendant carrying away stereo equipment when in fact only the stepson, Mr. Howard, had seen this was not material for probable cause because deleting this portion of the affidavit referring specifically to Mr. Walter would not alter the basic facts that the complainant's house was burglarized and that defendant was observed stealing equipment. Reading the affidavit in a common sense manner with due regard for the hectic conditions under which warrants are prepared, this Court found that defendant's complaint was marginal, and that the warrant's validity should be upheld.
As explained by the Pennsylvania Superior Court referring to an affidavit in which an informer was misnamed Commonwealth v. Luddy, 281 Pa.Super 541, 556, 422 A.2d 601, 609 (1980) (citations omitted).
Accordingly, defendant's contention of error in this regard is meritless.
Defendant contends that the Court erred in denying his motion for discharge under Pa. R. Crim. Pro. Rule 314. [4] This contention is meritless.
In interpreting Rule 314, then numbered Rule 315, the Pennsylvania Superior Court in Commonwealth v. Alvarez, 216 Pa.Super 394, 268 A.2d 192 (1970) stated that the rule only applies where the following are present: 1) the case involves no force, violence or threats, 2) the aggrieved party has a remedy by civil action, and 3) the public interest will not be materially affected. A Rule 314 discharge is then made upon a showing that satisfaction has been made to the aggrieved party, or upon an application for discharge with a consent agreement signed by all parties including the district attorney. Commonwealth v. Redcay, 248 Pa.Super 263, 375 A.2d 88 (1977).
Instantly two of the prerequisites for a Rule 314 settlement and discharge were lacking. First, the instant case involved an apparent use of force since Mr. Walter testified that he observed defendant forcibly trying to open the door, and later had in fact seen the door broken (N.T., 5/14/82, 498-501). Second, the public interest would be materially affected by settlement, discharge and non-prosecution of defendant in this case. Defendant had an adult record of six (6) convictions for burglary, one (1) conviction for robbery and conspiracy, one (1) conviction for possession of an instrument of crime, and a juvenile record of six (6) convictions for various offenses including robbery. See Pre-Sentence...
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