OPINION OF THE COURT
Appellant Curtis Wilbur Davis was arrested in December 1968 and charged with murder, voluntary and involuntary manslaughter and robbery. On September 25, 1969, appellant was found guilty, after a jury trial, of murder in the first degree, voluntary manslaughter and two counts of robbery. On appeal, this Court reversed the judgments of sentence and granted a new trial because of prejudicial remarks made by the district attorney during the trial. Commonwealth v. Davis, 452 Pa. 171, 305 A.2d 715 (1973). On remand, appellant was retried before a jury and found guilty of murder in the first degree and robbery. Judgments of sentence of life imprisonment on the murder count and ten to twenty years, to run consecutively, on the robbery count, were subsequently imposed. On this appeal,
Admissibility of Evidence
Appellant claims that the trial court erred in refusing to suppress evidence because: (1) he was illegally arrested; (2) the search incident to his arrest was overly broad; and (3) the warrant to search his apartment was issued without a showing of probable cause.
Appellant's original arrest and the search of his apartment were made pursuant to warrants issued on December
Appellant claims that the December 20 arrest was illegal because the officers who executed the arrest warrant were outside their jurisdiction. The warrant was issued in Chester, where the robbery occurred, to Chester City Police Officers. They arrested appellant at his work address in the borough of Marcus Hook, located near Chester. Appellant claims that the Act of August 6, 1963, P.L. 511, § 1
However, at the time of his arrest, the Act of March 31, 1860, P.L. 427, § 3, as amended (formerly codified as 19 P.S. § 3) was still in effect. That statute read in relevant part:
The Chester City Police were acting within their authority when they arrested appellant.
Appellant claims that the arresting officers acted illegally by seizing his apartment key incident to the arrest. He apparently believes that, because the key was not mentioned in the search warrants of his apartment, the officers were required to return the key and obtain another search warrant.
Finally, appellant asserts that the search warrants for his apartment and the arrest warrant were issued illegally. Prior to the issuance of a warrant, information must be presented to the magistrate which is sufficient to persuade a reasonable person that probable cause exists to conduct a search. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Commonwealth v. Jackson, 461 Pa. 632, 337 A.2d 582, cert. denied, 18 Crim.L.Reptr. 4089 (Dec. 3, 1975); Commonwealth v. D'Angelo, 437 Pa. 331, 263 A.2d 441 (1970). The same standard of probable cause must be met for the issuance of an arrest warrant. Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973). When, as here, probable cause is based on information
Commonwealth v. Milliken, supra at 313, 300 A.2d at 80.
The following evidence was presented by the police to the magistrate to justify issuance of the warrant: Newsome, the victim of the first robbery, gave a physical description of his assailant which also described appellant and identified appellant as the assailant from police photographs; Newsome described the getaway car as having blue-green color with a wide white stripe on both sides, and the police determined that appellant owned and operated a car which fit this description; Newsome stated that this assailant used a hooded jacket and a .32 caliber revolver; police determined that appellant had two separate residences. Although Newsome did not testify, he signed the affidavit for arrest and was present at the hearing. On the basis of this information, the magistrate issued four search warrants for the hooded jacket and the .32 caliber revolver, for each of appellant's
These facts are sufficient to meet the standard for the issuance of a search or arrest warrant. The magistrate was informed of the robbery, of appellant's probable participation, and of the instrumentalities used. He could reasonably conclude that the tip was not a "rumor" and that the perpetrator would possess evidence of the crime. He could conclude that the tip was reliable because the informant, who was the victim of the crime, was the eyewitness and positively identified appellant. See Commonwealth v. Kenney, 449 Pa. 562, 297 A.2d 794 (1972).
Appellant argues that the police were conducting a "fishing expedition" because they sought to search two apartments and two cars. However, the magistrate was justified in issuing four warrants since he was presented with evidence that appellant resided in both apartments and had access to both cars. Appellant also asserts that probable cause does not exist because, at the suppression hearing, an arresting officer gave conflicting testimony concerning the color of the jacket and hood. This claim
The suppression court properly denied appellant's motion to suppress evidence.
Sufficiency of the Evidence
There were two eyewitnesses to the crime. One, the victim's daughter, stated that the assailant resembled appellant in age, color and size but was unable to identify appellant as the killer. The other, a customer in the store where the murder took place, positively identified appellant at trial. In addition, the Commonwealth presented the murder weapon and the hood and jacket which were used during the robbery. These items were found in the apartment where appellant resided with another person. There was sufficient evidence to support an inference that appellant had placed the incriminating evidence in his apartment after the robbery.
The test for determining whether the evidence is sufficient to support a conviction is:
Commonwealth v. Robson, 461 Pa. 615, 625, 337 A.2d 573, 578 (1975); see Commonwealth v. Rose, 463 Pa. 264, 266, 344 A.2d 824, 825 (1975); Commonwealth v. Murray, 460 Pa. 605, 608, 334 A.2d 255, 257 (1975); Commonwealth v. McFadden, 448 Pa. 277, 281, 292 A.2d 324, 326 (1972); Commonwealth v. Young, 446 Pa. 122, 123, 285 A.2d 499, 500 (1971). The evidence here meets this test. The jury could conclude, based on circumstantial
Appellant argues that the trial court erred because it neither struck the testimony of the eyewitness nor instructed the jury to disbelieve his testimony.
This Court has repeatedly held that it is within the sole province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. Commonwealth v. Rose, supra at 268, 344 A.2d at 826; Commonwealth v. Robson, supra at 627, 337 A.2d at 579; Commonwealth v. Murray, supra at 609, 334 A.2d at 257; Commonwealth v. Smith, 457 Pa. 638, 641, 326 A.2d 60, 61 (1974); Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973); Commonwealth v. Garvin, 448 Pa. 258, 269, 293 A.2d 33, 39 (1972). Here, the jury chose to believe the Commonwealth witness. The fact that he was unable to identify appellant at the lineup is relevant to only the weight and credibility of his testimony. Commonwealth v. Tate, 229 Pa.Super. 202, 323 A.2d 188 (1974); see Commonwealth v. Jennings, 446 Pa. 294, 285 A.2d 143 (1971). The trial court carefully instructed the jury concerning the credibility of eyewitness identification, and no exceptions were taken to that portion of the charge. In these circumstances, we find no basis for disturbing the jury's determination.
Alleged Trial Errors
Appellant claims that the district attorney's conduct at the suppression hearing and at trial was so prejudicial that he is entitled to a new trial. The record does not support this contention. To the contrary, the alleged errors relied on by appellant were not significant, and the precautionary measures taken by the court to avoid any prejudice were adequate remedies.
Appellant asserts that the court committed a series of prejudicial errors which require reversal of the judgment of sentence. We disagree. The record discloses
Appellant also argues that prejudicial error occurred because jurors saw him handcuffed when he was in the hall outside the courtroom. The record discloses that on two occasions during voir dire appellant was handcuffed in the hall at times when jurors could have seen him.
Cf. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L. Ed.2d 353 (1970).
However, appellant here has not established that the two incidents he complains of created sufficient prejudice to warrant a grant of a mistrial. At a hearing on this issue, he offered no testimony to indicate that a juror at the trial did in fact see him. Nor did he request the court to question the jury concerning the incident or to give any form of cautionay instruction. The court specifically stated that it would give such an instruction if appellant so requested and that it would take every precaution to ensure that appellant was not seen by the jury while handcuffed. Because the record is devoid of a showing of prejudice and because appellant did not request, despite the court's explicit offer, either a voir dire examination or cautionary instructions, we hold that the court acted properly in refusing appellant's request for a mistrial. See Commonwealth v. Evans, 465 Pa. 12, 348 A.2d 92
Finally, appellant contends that, assuming no single assignment of error compels a new trial, the asserted errors collectively require reversal. We disagree. In Commonwealth v. Martinolich, supra, this Court was confronted with a similar claim. We stated:
"Our review of the record satisfies us that [the trial court] properly exercised [its] judicial responsibility and that appellant was afforded a fair and just trial. By explanation, admonition, and instruction during the course of trial and in his charge, the trial judge kept from the jury's consideration irrelevant issues, impermissible comments, and appeals to prejudice. . . . Yet, his conduct of the trial gave the jury the required latitude to decide appellant's guilt or innocence solely on the evidence properly before it."
Id. 456 Pa. at 162-63, 318 A.2d at 695 (footnotes omitted).
Here, as in Martinolich, appellant was accorded a fair and just trial.
Judgments of sentence affirmed.
JONES, C.J., did not participate in the consideration or decision of this case.
NIX and MANDERINO, JJ., concur in the result.
We do not determine whether section 11, standing without section 3, would authorize the action taken here. We also do not determine the remedy to be applied if arresting officers act outside their jurisdiction.
The affidavit for the arrest warrant provided that Curtis Davis on December 11, 1968, at Concord and Tilghman Streets in Chester "did rob John Newsome and did steal property from the person of John Newsome . . . ."
Appellant asserts that the existence of probable cause must be determined from these documents alone and that the oral testimony relied on by the magistrate should be ignored. Pa.R.Crim.P. 2003(a), adopted after appellant's arrest, mandates such a procedure, but the rule is not constitutionally required and is applied prospectively only. Commonwealth v. Conner, 452 Pa. 333, 305 A.2d 341 (1973); Commonwealth v. Jones, 452 Pa. 299, 304 A.2d 684 (1973); Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973). We therefore need not determine whether these affidavits, standing alone, would be sufficient to support a finding of probable cause.
Appellant alleges that the Commonwealth's cross-examination of two defense witnesses was improper. Appellant's brother testified on appellant's behalf. The district attorney asked him why he had not come to the police sooner with his story. He also attempted to explore matters beyond the scope of direct examination. Objections to these questions were sustained. Appellant also alleges that certain other questions of this witness created an inference in the minds of the jury that defendant was incarcerated prior to trial. The witness testified that appellant had a moustache prior to the date the crimes were committed and until the date of trial. The district attorney, in an effort to impeach this testimony, attempted to show a picture of appellant without a moustache taken while appellant was in jail. The court sustained an objection made at sidebar.
Another of appellant's brothers also testified on appellant's behalf. The district attorney inquired when he was first asked to testify. Appellant objected because he had chosen to present no evidence at the first trial. The court cautioned the Commonwealth to limit its questioning. The district attorney also questioned this witness about appellant's activities at the time of arrest. The witness stated that appellant came into the witness' bar quite often and had been there on December 19, 1968. The Commonwealth then asked when the next visit occurred. Appellant's objection was sustained because of the danger that the witness might testify that appellant had been arrested the following day. The jury was instructed to ignore the question.