Commonwealth v. Foy

458 A.2d 594, 312 Pa. Super. 220, 1983 Pa. Super. LEXIS 2791
CourtSuperior Court of Pennsylvania
DecidedMarch 25, 1983
DocketNo. 2104
StatusPublished

This text of 458 A.2d 594 (Commonwealth v. Foy) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Foy, 458 A.2d 594, 312 Pa. Super. 220, 1983 Pa. Super. LEXIS 2791 (Pa. Ct. App. 1983).

Opinion

VAN der YOORT, Judge:

On Monday, September 3, 1979, Bill Cook’s Pub at 5701 Elmwood Avenue, Philadelphia, was burglarized and Bill Cook, the proprietor, severely beaten by the burglar. In a non-jury trial on May 5, 1981, Appellant was found guilty of recklessly endangering another person, possession of an instrument of crime, aggravated assault, criminal trespass, and burglary. After denial of post-trial motions, Appellant was sentenced to a total of ten to twenty years imprisonment. The case is before us on direct appeal.

Appellant was apprehended by a police officer two blocks from the scene of the crime, within a few minutes after the assault on Mr. Cook. The officer brought Appellant back to the Pub where he was identified by the victim of the beating as his assailant.

The sole issue on appeal is whether the victim’s identification of Appellant as his assailant, a statement he later made [222]*222to a detective denying guilt, and a flashlight which he removed from his pocket at the police station, should have been suppressed on the ground that they were the fruits of an arrest, illegal because made without a warrant or probable cause.

The circumstances leading up to Appellant’s arrest are these: At 5:30 a.m. of the day of the break-in, a silent burglar alarm went off at Cook’s Pub, connected to a police station and the apartment of William Cook, the Pub owner and victim. In response to the alarm, Mr. Cook and the police arrived at the Pub simultaneously, checked the first floor and basement and discovered evidence of the break-in and the burglary but no clue as to the whereabouts of the burglar.

In mid-morning of the same day, Cook decided to visit the basement again, to check the possibility of the burglar’s entry having been made through a wall from an adjoining empty building. While in the basement, he unexpectedly came upon a man standing in a shower stall in the basement bathroom. The fluorescent lights above the shower were lit, the shower 'curtain was open, and the intruder was facing Cook and standing motionless in the shower stall. Cook, 69 years old, was frozen with fright, and after staring at the Appellant several moments, attempted to retreat to the stairway to the first floor. He had taken only a step or two when the intruder assaulted him with what appeared to be a tire iron, striking him some 15 to 18 times. Cook put up his arms to break the blows to his head, but was knocked to the floor and badly beaten. He screamed for help, and Appellant ran up the steps to the first floor and out of the building. Someone in the bar of the Pub put in a call to the police and Officer Daniel Pinkney, cruising in a nearby radio patrol car, was dispatched to the scene of the disturbance at approximately 10:57 a.m. This was within a few minutes of the attack on Cook.

When Officer Pinkney was two blocks from the Pub, he was flagged down by the hand-waving and horn-blowing of a motorist driving away from the Pub and in the opposite [223]*223direction to the approaching police car. The motorist told the officer that a man walking away from the Pub and some ten or fifteen feet ahead of the informant’s car was the man who had caused the disturbance at the Pub. There was no one else in sight on the street. The man thus identified was Appellant.

The officer backed his car toward the departing Appellant, who immediately quickened his pace and then broke into a run. The officer yelled to Appellant to halt, and pulled his revolver. Appellant halted and the officer frisked and handcuffed him. When the officer asked the informant if he could identify Appellant as the one who had robbed Cook’s Pub, he said he could not.

The officer then decided to have Appellant taken to the Pub for further identification. He put Appellant in the back seat of his patrol car and radioed the police station for a police wagon to take Appellant back to the Pub. While awaiting the police wagon, the officer turned on his car radio and heard a police bulletin concerning the burglary of Cook’s Pub. The bulletin called for the apprehension of a negro male about five feet nine and one-half inches tall and dressed in black trousers and white shirt (as was Appellant).

As soon as the police wagon arrived, Appellant was returned to the Pub, handcuffed and in custody of Officer Pinkney. When he was taken into the Pub, Mr. Cook was sitting in a chair at the top of the stairs leading to the basement, bleeding and being administered to by a police rescue squad, in pain but alert and talking. He immediately identified Appellant as his assailant. Appellant was then arrested and, in due course, tried and convicted.

Appellant’s appeal is based on the contention that this on-the-scene identification of him, and the statement which he later made to a detective denying guilt, and the flashlight found in his pocket, should have been suppressed as evidence because they were the products of an illegal arrest. A suppression hearing was held by the Court below and suppression was denied.

[224]*224Appellant relies upon the guidelines to be gleaned from the opinions in Aguilar v. Texas 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), for determining the reliance that may be placed by an arresting officer on information received from an informer. Those guidelines, as paraphrased by this Court in Commonwealth v. Waters, 276 Pa.Super.Ct. 584, 589, 419 A.2d 612 (1980), require that:

Where probable cause is based upon information received from an unidentified informant, the following requirements must be met: (1) the arresting officer must know some of the underlying circumstances from which the informant concluded that the suspect participated in criminal activity, and (2) the officer must have some reasonable basis for concluding that the informant was credible or his information reliable.

In several recent cases, we have held that in applying the requirements of Aguilar and Spinelli to information furnished by an informant, we should test reasonable cause for arrest not merely on the tip received from the informant, but by surrounding circumstances as well, including background information otherwise known or reasonably believed by the arresting officer, the timing of the informant’s information, the proximity of the informant to the scene of the disturbance, and the conduct of the suspect in fleeing from the scene or from the police. So tested, we have refused to rule an arrest to be illegal or to suppress testimony where the circumstances tending to corroborate the informant were, if anything, less persuasive than in this case. Commonwealth v. Gease, 304 Pa.Super.Ct. 433, 450 A.2d 989 (1982), Commonwealth v. Legg, 258 Pa.Super.Ct. 294, 392 A.2d 801 (1978), Commonwealth v. Montgomery, 246 Pa.Super.Ct. 371, 371 A.2d 885 (1977).

In Legg,

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Related

Aguilar v. Texas
378 U.S. 108 (Supreme Court, 1964)
Spinelli v. United States
393 U.S. 410 (Supreme Court, 1969)
Commonwealth v. Legg
392 A.2d 801 (Superior Court of Pennsylvania, 1978)
Commonwealth v. Gease
450 A.2d 989 (Superior Court of Pennsylvania, 1982)
Commonwealth v. Waters
419 A.2d 612 (Superior Court of Pennsylvania, 1980)
Commonwealth v. Montgomery
371 A.2d 885 (Superior Court of Pennsylvania, 1977)

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Bluebook (online)
458 A.2d 594, 312 Pa. Super. 220, 1983 Pa. Super. LEXIS 2791, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-foy-pasuperct-1983.