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COMMONWEALTH v. BRAYBOY (11/17/66)

decided: November 17, 1966.

COMMONWEALTH
v.
BRAYBOY, APPELLANT



Appeal from order of Court of Quarter Sessions of Philadelphia County, Aug. T., 1965, No. 538, in case of Commonwealth of Pennsylvania v. Sydney E. Brayboy.

COUNSEL

Sydney E. Brayboy, appellant, in propria persona.

Michael J. Rotko, James D. Crawford and Alan J. Davis, Assistant District Attorneys, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Montgomery, J.

Author: Montgomery

[ 209 Pa. Super. Page 11]

This is an appeal from the dismissal of appellant's petition, without hearing, filed under the Post Conviction Hearing Act of January 25, 1966, P. L. (1965) 1580. Appellant contends that he was denied due process because he was arrested and searched without probable cause, and therefore the evidence secured by the illegal search should have been suppressed. A preliminary motion to suppress the evidence was denied by the Honorable Donald D. Jamieson, President Judge, and a renewal of same at trial was denied by the Honorable Thomas M. Reed, Judge. No appeal having been taken

[ 209 Pa. Super. Page 12]

    from the judgment of sentence, the propriety of those actions were not subsequently questioned until this petition was filed. Since the finding of Judge Reed was against the appellant-defendant, the evidence must be viewed in the light which most favors the Commonwealth.

On July 16, 1965, at about 2:10 a.m., two Philadelphia police officers, one of whom had about ten years experience on the force, while cruising in their patrol car received a report of the burglary of a wig shop located in their general area. About ten minutes after this report was received the officers noticed an unknown man, later identified as the defendant, walking in the 4800 block of Fairmount Avenue. The defendant had a large bulge under his shirt. Since the scene of the reported burglary was about ten blocks away the officers pulled abreast of the defendant in order to observe him more closely. The defendant looked at the officers and before a word had been spoken broke into a run. The officers testified that they felt "something was wrong", and thus they gave pursuit. As they again approached the defendant they noticed a fresh cut on his right hand. The officers then detained the defendant and one of them, in an effort to investigate the incident and possibly correlate it to the reported burglary, asked the defendant what the bulge was under his shirt. The defendant immediately took three woman's wigs from beneath his shirt and handed them to the police. The police officers then asked him who he was and where he had gotten the wigs, but defendant would neither identify himself nor explain his possession of the wigs. It was later learned that these wigs had been stolen from a nearby wig shop earlier that morning, but not the same wig shop that had been reported burglarized.

Although much of the Commonwealth's brief is devoted to the right of police officers to "stop and frisk"

[ 209 Pa. Super. Page 13]

    suspects, a subject we have discussed at length in an opinion to be filed herewith,*fn1 such subject is not involved in this case. The only issue here is whether the evidence was legally procured as a result of defendant's arrest without a warrant but on probable cause, or by a voluntary surrender of the evidence.

In Commonwealth v. Negri, 414 Pa. 21, 30, 198 A.2d 595, 600 (1964), our Supreme Court stated the rule presently applicable to be, "'The lawfulness of the arrest without warrant, in turn, must be based upon probable cause, which exists "where 'the facts and circumstances within their [officer's] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." . . . Important factors to be considered in determining the practicability of the officers first having ...


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