Commonwealth v. De Shields

POPOVICH, Judge:

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County following the appellant’s, Wilbert DeShields’, convictions of first degree murder and possession of an instrument of crime, generally. We affirm.

The facts, viewed in a light most favorable to the verdict-winner, reveal that at 12:45 a.m. on the 30th of October, 1980, Tyrone Johnson, Derrick Hart and Richard Moore (also known as “Fats”) were engaged in a conversation at the corner of 32nd and Morris Streets in Philadelphia. Shortly thereafter the appellant joined the group and got into an argument with Moore. The appellant accused Moore of taking his drugs (“speed”) and girl. Moore did not deny the accusations, and this caused the appellant to pull a knife and threaten Moore that “somebody’s going to die tonight.” Moore told the appellant to put the knife away and fight fair. A fight never materialized, but the appellant did put the knife away.

The four then walked down 32nd Street, with Johnson leaving the group at Arlington. The others continued on their way with Moore walking to the left of Hart and the appellant trailing the two. At 32nd and Monument Streets the appellant came up to Moore and said, “You took so much. Take this.” Initially, Hart thought that the appellant had punched Moore somewhere on the top of the right shoulder. But, when he turned to see the appellant bring his arm down to his side, he noticed that the appellant “had a knife in his hand.” Moore reacted by running into the street and yelling at the appellant that “he would kill him.”

The appellant warned Hart that if he “snitched” he would be blamed for the stabbing. In point of fact, Hart did not report what he had seen to the police until the following day, after hearing of Moore’s death.

At 12:45 a.m., James Roberts, who lived one block from the scene and knew both the appellant and the victim, heard a knock at his front door. Upon answering, Richard Moore asked Roberts to take him to the hospital because he had been stabbed. However, by the time Roberts got dressed Moore was nowhere to be found.

At 12:55 a.m., Officers Jordan and Edney received a radio bulletin of a stabbing at 3000 Euclid Street, which is approximately 3 blocks from 32nd and Monument. Upon arriving at the stated address, the police were told by a female that the male in her home had knocked on her door and “just fell in.” As Officer Jordan attempted to open the front door, he was hampered by the fact that the victim was lying on his left side blocking the door with his feet. Officer Jordan finally gained entry and knelt down beside the victim and saw that he “was breathing rather erratically. He had a hard time breathing, had a lot of pain on his face[.]” The officer asked him who stabbed him. Before the victim lost consciousness, he stated, “Wilbert did it.”

Thereafter, the victim was transported to the hospital and there he died as a result of a stab wound sustained on his right shoulder which severed a vein causing 3 pints of blood to collect in his chest cavity.

Within 20 minutes after information concerning the stabbing had been relayed over the radio, two Philadelphia police officers arrived on the scene with Samuel DeShields. One of the officers (Carter), upon viewing the individual, “stated ... that he knew this guy, and that Wilbert — this Wilbert was this man’s brother, and that he lived in the 3200 block of Monument Street.” Also, Samuel DeShields told the police that “he believed his brother Wilbert had stabbed Fats____”

Once the police arrived at the appellant’s residence, Officer Jordan knocked on the front door and stated, “This is the police.” He then heard a female, later determined to be the appellant’s mother, say, “Wilbert, it is the cops. Get out.” Again, the officer knocked on the door, and, finding it ajar, stepped into a vestibule area that had another door which also was open and led into the living room. The officer yelled his identity a second time before appellant’s mother came to ask what he wanted.

Officer Jordan informed the appellant’s mother his purpose for being there. The appellant, thereafter, was advised of his rights and handcuffed. As he was being escorted out of the house, the appellant turned to Officer Jordan and said, “I beat one. I will beat this one, too.”

Later on that same evening, as the appellant was being placed in an elevator to be taken from the basement to the homicide division at Eighth and Race Streets in Philadelphia, he turned to Officer Jordan and asked, “Is that guy dead?” The officer remarked, “Look, you don’t have to say nothing until you talk to your lawyer.” Nevertheless, the appellant turned to the officer and stated, “If the dude died, he deserved what he got.”

Between 1:30-1:45 a.m., the appellant’s invocation of his right to an attorney, coupled with what Detective James McCaffery felt was insufficient evidence, prompted his release. It was not until Derrick Hart reported to the police that he witnessed the stabbing that the appellant was rearrested and charged with the killing.

Following a trial by jury, post-verdict motions were filed in which the appellant questioned the competency of trial counsel. New counsel was appointed for the appellant and a hearing was conducted to review the merits of all of the appellant’s claims. A court en banc ruled against the appellant, and, thereafter, a sentence of life imprisonment was issued for the stabbing death of Roger Moore and a concurrent sentence of 21/2 to 5 years was imposed for the weapons offense. This appeal was then perfected.

The appellant now assails the admissibility of the victim’s statement as a dying declaration and trial counsel’s stewardship.

The appellant argues that there was no evidence to show that Roger Moore was aware of the severity of his wound, as evidenced by his threats of retaliation and running a substantial distance before collapsing. Thus, he continues, one of the criteria necessary to admit a statement as a dying declaration was missing and should have caused appellant’s statement to be excluded at trial.

It is true that the admission of a hearsay statement as a dying declaration requires proof that at the time the declarant spoke, death was imminent, he had a sense of impending death and death did in fact ensue. Commonwealth v. Miller, 490 Pa. 457, 417 A.2d 128 (1980). However, as correctly observed by the trial court, in Pennsylvania a declarant’s belief in his imminent demise may be inferred from surrounding circumstances, including the nature of the declarant’s wounds. Commonwealth v. Cooley, 465 Pa. 35, 348 A.2d 103 (1975).

Instantly, the assistant medical examiner recounted that the victim had sustained a % inch stab wound which severed a major vein behind the collarbone. This caused in excess of 3 pints of blood to drain into the decedent’s chest cavity and hastened death. Couple the preceding with Officer Jordan’s description of the victim grimacing and breathing with difficulty while lying prostrate on the floor of a stranger’s house, and we have no difficulty in concluding that the evidence was sufficient to infer the declarant’s awareness that he was near death so as to render his statement (“Wilbert did it”) a dying declaration. See Commonwealth v. Plubell, 367 Pa. 452, 80 A.2d 825 (1951).

The last of the appellant’s complaints concerns eight instances of trial counsel’s alleged ineptness.

The first two points (A & B) in appellant’s brief center upon his warrantless arrest and the resultant taint of his statements. In particular, the appellant argues that the police acted without probable cause. We disagree.

The police had been told by the victim that “Wilbert did it,” just before he lost consciousness from a knife wound inflicted by his assailant. A short time and distance from the incident, the police detained a Samuel DeShields because they knew Samuel had a brother by the name of Wilbert. Upon questioning, Samuel told the police, “I think Wilbert’s the one who did it.” Hearing this, the police made their way to the appellant’s residence. Once there, after identifying themselves, they heard a female say, “Wilbert, it is the cops. Get out.”

Thereafter, the police effectuated a warrantless arrest of the appellant and advised him of his Miranda rights, to which he now protests was constitutionally infirm as having occurred without the benefit of probable cause.

It cannot be gainsaid that the police, prior to entering the appellant’s home, had sufficient information to label the appellant a “suspect” in regard to the offense under investigation. Thus, when the police heard a warning to the appellant to flee the area, we find that “the facts and circumstances within the arresting officers’] knowledge and of which [they] had reasonably trustworthy information were sufficient to warrant ... prudent m[e]n in believing that [a] citizen had committed or was committing an offense.” Commonwealth v. Mackie, 456 Pa. 372, 375, 320 A.2d 842, 843-844 (1974); see also Commonwealth v. Bo-surgi, 411 Pa. 56, 67, 190 A.2d 304, 310 (1963) (“ ‘In dealing with probable cause ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ”).

Also, the (“exigent”) circumstances which prefaced the appellant’s arrest were consonant with those factors enumerated in Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (1978), save for one not herein relevant, to render the actions of the police proper and legitimate in the face of information of an armed and dangerous individual.

We have no reason to hold that the police acted illegally in the case at bar. Rather, the initial suspicions culminated into full-blown probable cause once the police arrived at the appellant’s premises and heard statements advising him to exit the residence because the police had arrived. See Commonwealth v. Bosurgi, supra (an arrest may be based upon hearsay evidence). For the authorities to have turned their backs would have been in derogation of their duty to uphold law and order, to investigate legitimate leads and react in a common sense fashion. See Commonwealth v. Bosurgi, supra; cf. Commonwealth v. Dennis, 289 Pa.Super. 305, 433 A.2d 79 (1981).

Accordingly, finding that the actions of the police were proper in arresting the appellant, we cannot deem trial counsel to be ineffective for failing to assault such conduct in the context of a motion to suppress. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977) (Counsel will not be deemed ineffective for failing to do a meritless act). Likewise, since our review of the record indicates that the appellant’s incriminating statements were volunteered and not the product of custodial interrogation, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), nor any intoxication, we hold trial counsel’s actions proper in not attacking such statements at the suppression stage of the case.

Furthermore, finding that the other claims raised by the appellant in his brief (see Points C-H) to be equally merit-less, we affirm the appellant’s judgment of sentence.

CERCONE, J., files a dissenting opinion.