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COMMONWEALTH v. SCULL (12/12/62)

December 12, 1962

COMMONWEALTH
v.
SCULL, APPELLANT.



Appeal, No. 298, Oct. T., 1962, from judgments of Court of Quarter Sessions of Clearfield County, May T., 1961, Nos. 125, 135, and 136, transferred to Court of Oyer and Terminer, Sept. T., 1961, Nos. 1, 2, and 3, in case of Commonwealth of Pennsylvania v. John Scull. Judgments of sentence affirmed.

COUNSEL

F. Cortez Bell, Sr., with him Bell, Silberblatt & Swoope, for appellant.

Eugene G. Kitko, District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Rhodes

[ 200 Pa. Super. Page 124]

OPINION BY RHODES, P.J.

Appellant, John Scull, was indicted, tried, and convicted of burglary and larceny in Clearfield County, at Nos. 125, 135, 136, May Sessions, 1961, Court of Quarter Sessions, Nos. 1, 2, 3, September Term, 1961, Court of Oyer and Terminer. Appellant's co-defendants, Cole and Winters, at Nos. 135, 136, May Sessions, 1961, Nos. 2, 3, September Term, 1961, entered pleas of guilty. Appellant was tried on October 9-13, 1961. A new trial was refused, and he was sentenced on May 5, 1962.*fn1

[ 200 Pa. Super. Page 125]

On this appeal appellant contends that certain tools were obtained from his car as a result of an unlawful search and seizure, and hence were inadmissible as evidence at his trial, under Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

As related to the search and seizure, the first question here raised, the facts may be stated as follows:

A burglary occurred in the early morning of May 15, 1961, at Alexander Motor Parts Company, Clearfield County. A police officer of DuBois, Clearfield County, observed appellant's cream and green 1959 Ford station wagon, including its New York license number, in the vicinity of the burglary at 3:30 a.m. The officer was unable to stop the car although he pursued it for some distance.

A warrant was issued for the arrest of appellant, and a fugitive warrant was sent to Niagara Falls, New York, together with a teletype description and the license number of the Scull station wagon. Lieutenant Fitzsimmons of the police department of the City of Niagara Falls, New York, went to Scull's residence with the warrant for his arrest on July 10, 1961, but he passed by when he did not see the Scull car which, he was advised by teletype, appellant was driving. The next morning, about 10:30 a.m., the police saw the car, unattended, parked in the driveway on the south side of the house. Lieutenant Fitzaimmons and several uniformed officers surrounded the house to serve the warrant. The teletype message stated that the man was armed and was considered dangerous. With the wife's permission the officers searched the house for appellant but failed to find him. The Lieutenant then opened the ...


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