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COMMONWEALTH v. HICKS (11/17/66)

decided: November 17, 1966.

COMMONWEALTH
v.
HICKS, APPELLANT



Appeals from judgment of Court of Quarter Sessions of Philadelphia County, Feb. T., 1966, Nos. 2655 and 2657, in case of Commonwealth of Pennsylvania v. Walter Hicks.

COUNSEL

Leonard Packel, Assistant Defender, with him Melvin Dildine, Assistant Defender, and Herman I. Pollock, Defender, for appellant.

Michael J. Rotko, Assistant District Attorney, with him John J. DiPaul and Alan J. Davis, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

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

Author: Montgomery

[ 209 Pa. Super. Page 3]

Appellant-defendant was tried and found guilty by the Honorable Robert W. Trembath without a jury, on charges of burglary, attempted burglary, and possession of burglary tools. His motions for a new trial and in arrest of judgment having been overruled sentences were imposed on the indictments charging burglary and possessing burglary tools with sentence being suspended on the charge of attempted burglary. The only issues before us are the legality of the actions of the police officer who apprehended the defendant, and the sufficiency of the evidence, particularly the evidence offered to prove the ownership of the buildings alleged to have been burglarized. The indictments named the tenants whose apartments were involved rather than the owners of the buildings. The buildings were identified as 1800 Waverly Street in which Barbara Poet, a Commonwealth witness, had her apartment, and 1634 Lombard Street in which William Lloyd, another Commonwealth witness, had his apartment, both buildings being in the City of Philadelphia.

Barbara Poet testified that she heard a scratching sound at her neighbor's apartment, and found defendant in the hallway, and that he claimed to be looking for one R. J. Reynolds. After defendant left the building she found wood chips on the floor and loose molding around her neighbor's door. The locks to the front

[ 209 Pa. Super. Page 4]

    door of the apartment building and that of the neighbor's apartment appeared to have been tampered with. William Lloyd testified that he saw defendant in an adjoining building looking for someone, and that his apartment door had in fact been tampered with. Both witnesses were positive in their identification of defendant as the person they saw in their respective buildings.

Officer Closkey testified that after receiving a police report of a burglary at 1634 Lombard Street he stopped defendant whom he saw walking on the street a few (five) blocks from that apartment house. The tenants had described the intruder to the police as a negro with a brown coat and mustache. Officer Closkey also testified that the defendant, when stopped, wore a light colored coat and needed a shave, and that the reason for the stop was for the purpose of investigating the reported burglary. Incident to the stop Officer Closkey frisked defendant and found a penknife with a three inch blade. Defendant was then arrested and taken to 1634 Lombard Street for identification, and subsequently booked on the burglary charges. The knife was introduced as evidence, over objection, at the trial.

We shall first consider defendant's contention that the search which produced the penknife was not incident to a valid arrest and should have been excluded from the evidence at the trial. This case raises the interesting question of a police officer's right to stop and frisk a suspect for dangerous weapons. To what extent under the Fourth Amendment to the United States Constitution, if any, can a police officer stop, detain and frisk a defendant short of arrest?

The constitutional restrictions of the Fourth Amendment are against unreasonable searches, not against all searches. What is reasonable involves a balancing of interests ...


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