Appeals from judgments of Court of Oyer and Terminer of Montgomery County, April T., 1966, Nos. 691 to 694, inclusive (No. 30 April T., 1966), in case of Commonwealth of Pennsylvania v. Leon D. Hargrave et al.
Gerald L. Bowen, with him Eagen and Bowen, for appellants.
Richard A. Devlin, Assistant District Attorney, with him Henry T. Crocker, Assistant District Attorney, and Richard S. Lowe, District Attorney, for Commonwealth, appellee.
Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Ervin, P. J., and Wright, J., absent). Opinion by Jacobs, J. Watkins and Montgomery, JJ., dissent and would affirm the lower court.
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The defendants, Leon D. Hargrave and James Kermit Hill, appeal from judgments of sentence imposed upon each after a jury convicted them of burglary, conspiracy to commit burglary, loitering and prowling at night time and possession of burglary tools.
About 2:00 a.m., on March 28, 1966, an officer of the Lower Moreland Township Police Department, Montgomery County was on routine patrol when he observed a sedan bearing Maryland license plates proceeding in a westerly direction on Welsh Road in the township. A few minutes later he saw the same vehicle as it came east on Welsh Road. The officer drove into an open field and extinguished his lights. As he watched, the car proceeded in a westerly direction again on the same road, each time passing the Bethayres Valley Apartments. The vehicle then turned around, proceeded east, pulled into an entrance of the apartments and stopped on a parking lot in front of one of the buildings. As the officer proceeded toward this parking lot he observed the driver of the vehicle, Hargrave, get out, walk to the back of the car and look up and down Welsh Road while the passenger, Hill, got out and walked up to the entrance of the apartment building vestibule and went inside. The officer then drove his vehicle to the rear of the defendants' automobile and defendant Hill, who had entered the apartment house lobby, immediately came out. He had spent about fifteen seconds in the building.
The officer examined the defendants' operator's permits and shined his flashlight into the back window of the defendants' vehicle, where he observed a 36 inch pick-axe handle and a lug wrench on the floor. Moving toward the front of the vehicle, where the passenger's door was standing open, the officer shined the flashlight into the car. He observed two 25 cents money
[ 212 Pa. Super. Page 170]
wrappers lying on the floor and a blue bag protruding from under the front seat. He reached down and pulled it forward, observing that the bag was full of loose coins.
At this point the assistance which the officer had radioed for arrived and the two officers ordered the defendants to stand in front of the police car and keep their hands in sight. They were taken into custody for loitering and prowling at night. One of the officers then took the keys from the ignition of the vehicle and opened the trunk, where he found a wastepaper can filled with coins, some loose and some in bags and wrappers, with six keys on top, a home-made device for making and cutting keys, and two packages of blank ACE lock-type keys. After patting the defendants down, the officers placed them in a police car and took them to police headquarters.
The defendants were seated in separate places in the station until the police chief arrived. Then they were asked several questions, searched and put in cells. The arresting officer searched the patrol car and the station house area where the defendants had sat, for any items that may have been discarded by them. A newspaper was on the chair next to where Hill had been seated. Inserted in one of the folds was a device which the officer identified as a lock set up. Its function was to measure the depth of the tumblers in an ACE type lock so that a key could be made to fit the lock. In a wastebasket not more than three feet from where Hargrave had sat the officer found, wadded in tissue paper, twenty-three small knife blades which the officer said were used in the key making machine to cut ...