Commonwealth v. Hart

OPINION OF THE COURT

O’BRIEN, Justice.

On January 30, 1975, appellant, Frank Lee Hart, was convicted by a judge sitting without a jury of murder in the third degree and possession of an instrument of *273crime. Postverdict motions were denied. Appellant was sentenced to a term of five-to-fifteen years’ imprisonment on the murder in the third degree conviction and a concurrent term of one-to-two years’ imprisonment on the possession of an instrument of crime conviction.1

Appellant first argues that the evidence was insufficient to sustain his conviction of murder in the third degree. We do not agree. The facts surrounding the homicide are as follows.2

On August 16, 1974, the “Redner Street Gang” and the “DeMarcos Gang” confronted each other in the DeMarcos’ territory. The decedent, Ronnie Treadwell, was a member of the Redner Street Gang and appellant was a member of the DeMarcos’. An argument ensued between members of both gangs. Treadwell pointed a gun at appellant; it clicked but did not fire. Treadwell then turned away from appellant and ran. Appellant retreated to the next corner where another member of the DeMarcos Gang handed him a rifle. Appellant shot the decedent in the back. Appellant returned the rifle to the other gang member and walked away.

Having viewed the evidence in the light most favorable to the Commonwealth, we are of the opinion that the evidence was sufficient to sustain a conviction of murder in the third degree.

Appellant next argues that the court below erred in failing to suppress his confession. Appellant asserts *274that the Philadelphia police lacked “probable cause” for his arrest and that his subsequent confession is tainted as the “fruit of the poisonous tree.” See Commonwealth v. Daniels, 455 Pa. 552, 317 A.2d 237 (1974) and Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed. 2d 441 (1963).

The facts surrounding appellant’s arrest and confession are as follows. On August 16, 1974, appellant was arrested at 8:30 a. m. The police officer who arrested him had received the information from another policeman who had interrogated an eyewitness to the shooting. This eyewitness named the gunman as “Blue.” (The record is barren of any evidence of how the police connected the nickname “Blue” to the appellant, Frank Lee Hart.) The interrogating officer then requested that appellant be arrested. The appellant confessed at 9:40 a. m. on the same day.

Assuming that appellant’s arrest was without probable cause, we are of the opinion that the error was harmless beyond a reasonable doubt.

Appellant took the stand in his own defense and his trial testimony reiterated the facts of his confession.

In Commonwealth v. Cummings, 466 Pa. 332, 353 A.2d 381 (Filed March 17,1976), the court stated:

“ . . . This court has consistently held that when a defendant takes the stand and reiterates the factual narrative contained in a confession claimed to be invalid — whether for constitutional infirmities or because of violation of Rule 130, Pa.R.Crim.P., 19 P.S. (1975 Pamphlet — the admission into evidence of the alleged illegal formal confession, if error at all, is harmless error beyond a reasonable doubt. See Commonwealth v. Saunders, 459 Pa. 677, 331 A.2d 193 (1975); Commonwealth v. Brittain, 455 Pa. 562, 317 A.2d 219 (1974).”

Judgment of Sentence affirmed.

*275MANDERINO, J., files a concurring opinion. ROBERTS, J., files a dissenting opinion in which NIX, J., joins. NIX, J., files a dissenting opinion in which ROBERTS, J., joins.

. The only conviction before this court is the conviction for murder in the third degree at No. 23 September Term, 1974, Court of Common Pleas, Criminal Trial Division, of Philadelphia. No appeal was taken in the other conviction.

. The standard of review of appellate courts in reviewing a sufficiency of the evidence claim is:

“. . . ‘Whether, accepting as true all the evidence and all reasonable inferences therefrom, upon which if believed the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted.’ .” Commonwealth v. Bayard, 453 Pa. 506, 509, 309 A.2d 579, 581 (1973).