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COMMONWEALTH v. NICHOLLS (03/24/66)

decided: March 24, 1966.

COMMONWEALTH
v.
NICHOLLS, APPELLANT



Appeals from judgments of Court of Oyer and Terminer of Montgomery County, April T., 1965, No. 68, in case of Commonwealth of Pennsylvania v. Robert Nicholls.

COUNSEL

Jean B. Green, Public Defender, for appellant.

Richard A. Devlin, Assistant District Attorney, with him Henry T. Crocker, Assistant District Attorney, and Richard S. Lowe, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Montgomery, J.

Author: Montgomery

[ 207 Pa. Super. Page 412]

These appeals are from judgments of sentence following verdicts of guilty returned by a jury on two indictments (765 and 767 of 1965) charging burglary and larceny and a third indictment (No. 769 of 1965) charging loitering and prowling at night.

Briefly the facts are as follows. On March 31, 1965, at 8:30 p.m. appellant Robert Nicholls and a companion were observed at the front door of a home in Cheltenham Township, Montgomery County, Pennsylvania, ringing the doorbell, trying the front door and looking in a window immediately adjacent to the front door. Another man was observed sitting in an automobile parked in front of the home. The police officer who had observed the three men questioned them as to their presence there and, not receiving an answer that satisfied him, radioed for another officer, meanwhile detaining the three men. The other policeman arrived shortly thereafter and recognized one of appellant's companions as a known burglar. The two officers thereupon placed appellant and his companions under arrest for "loitering and prowling at night time". Following the arrest the first officer without the knowledge of the other made a search of the interior of the car for a gun or other weapon and discovered in the glove compartment thereof certain articles of jewelry which were later determined to be the fruits of a burglary that had not as of that time been reported. After the three arrested men had been taken to the police station the second officer secured a warrant to search the car and in executing it discovered the articles the first officer had seen in the glove compartment and also other purloined goods in the trunk of the car. Before this search was made a general question was asked as to the rightful possessor of the automobile and the appellant volunteered the answer that he was, having rented it.

[ 207 Pa. Super. Page 413]

A timely motion to suppress the evidence found in the car, i.e., the stolen articles, was denied and appellant's convictions of burglary were based largely on this evidence. The propriety of the denial of this motion and the acceptance of the stolen property in evidence is the main issue in this appeal. The admission of appellant's statement that he was the possessor of the car is the only other issue before us. It is appellant's contention that his arrest was unlawful and therefore the subsequent searches of the automobile, including the one made in execution of the search warrant, were illegal.

Section 418 of The Penal Code of June 24, 1939, P. L. 872, § 418, as amended, 18 P.S. § 4418, provides that, "Whoever at night time maliciously loiters or maliciously prowls around a dwelling house or any other place used wholly or in part for living or dwelling purposes, belonging to or occupied by another, is guilty of a misdemeanor . . ." In Commonwealth v. Clinton, 391 Pa. 212, 137 A.2d 463 (1958), in dealing with this crime, our Supreme Court enumerated its three elements as (1) a loitering or prowling; (2) at night; (3) around a dwelling house. The latter two elements are present in this case without question. It is only the first that is questioned by appellant. He contends his actions on that night do not meet the definition of loitering or prowling. We disagree. In Commonwealth v. DeWan, 181 Pa. Superior Ct. 203, 208, 124 A.2d 139, 141 (1956), we set forth various definitions of the words "loitering" and "prowl" and said: "This Act was obviously intended to punish not only those persons who at night are bent on peeping into the private affairs of citizens in their dwellings, but also those individuals who are found at or near dwellings without lawful purpose or reason and whose preence can only be explained in some preparation for or attempt at illegality or crime. . . . Of necessity, therefore,

[ 207 Pa. Super. Page 414]

    each act must be considered under the peculiar facts and circumstances which give rise to the accusation." See also Commonwealth v. Williams, 185 Pa. Superior Ct. 312, 137 A.2d 903 (1958). In the present case the action of appellant in trying the door, and peeping in the window of a dwelling house in the nighttime without lawful business with the owner thereof, and in the company of a known burglar amply justified the appellant's arrest and supports his conviction.

The arrest being lawful, the reasonableness of the subsequent searches remains to be determined. The facts and circumstances in each case determine the reasonableness of a search. Commonwealth v. Cockfield,, 411 Pa. 71, 190 A.2d 898 (1963), cert. denied, 375 U.S. 920, 84 S. Ct. 265, 11 L. Ed. 2d 164. The standard of reasonableness is still for state courts to determine, Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), cert. denied, 375 U.S. 910, 84 S. Ct. 204, 11 L. Ed. 2d 149; and it is to be determined under the total atmosphere of ...


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