219 Pa. Super. 326 | Pa. Super. Ct. | 1971
Dissenting Opinion
Dissenting Opinion by
1 respectfully dissent.
Appellant Hayford Christian was found guilty by a jury in February 1958 of burglary, rape and sodomy. In May 1969, the lower court heard and dismissed appellant’s Post Conviction Hearing Act petition in which he alleged that his appeal rights had been denied. The court allowed appellant to file an appeal nunc pro tunc to this Court.
The record indicates that in the early morning hours of August 8, 1957, a man entered the home of a Mrs. Matilda Martin of Pittsburgh and forced her to have sexual relations with him. Upon notification of the assault, Officer Flora of the Pittsburgh Police Department went to Mrs. Martin’s home and received the following description from her. “Q. And what description did she give you, Officer? A. She says he was a light colored man and thin and not very tall, and I says, ‘How tall is he?’, and she says a little taller than
Officer Flora testified concerning the arrest: “I ordered the officers to pick up everybody in the street in that area, which the officers did and they picked up 3 or 4 and 1 of them answered the description pretty good and I talked to one of them, and I says, ‘Do you know anybody else in the neighborhood that answers your description. . And I took Officer Schwabedissen and a couple of other officers and went to 528 Grace Street and we took this defendant [appellant] into custody for suspicion.”
Appellant was arrested and taken to the police station, where evidence of the assault was discovered on his clothing. This evidence was admitted over objection at trial.
In my judgment, the police did not have probable cause for appellant’s arrest under the standards enun
The arrest was unlawful and the fruits of the subsequent search should not have been admitted. I would vacate the judgment of sentence and grant appellant a new trial.
Lead Opinion
Opinion
Order affirmed.