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COMMONWEALTH v. HOWELL (09/12/68)

decided: September 12, 1968.

COMMONWEALTH
v.
HOWELL, APPELLANT



Appeal from judgment of sentence of Court of Quarter Sessions of Philadelphia County, No. 3436, 1966 Term, in case of Commonwealth of Pennsylvania v. Walter Howell.

COUNSEL

Bennett Weinstock, Assistant Defender, with him William E. McDaniels and Melvin Dildine, Assistant Defenders, and Herman I. Pollock, Defender, for appellant.

Alan J. Davis, Assistant District Attorney, with him Arlen Specter, District Attorney, for Commonwealth, appellee.

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

Author: Watkins

[ 213 Pa. Super. Page 35]

This is an appeal nunc pro tunc by Walter Howell, the defendant-appellant, from the judgment of sentence of the Court of Quarter Sessions of Philadelphia County.

He was indicted for burglary of a motor vehicle. A pretrial motion to suppress the evidence was heard and denied. He was tried before the Hon. Maurice W. Sporkin, without a jury, and found guilty. He was sentenced to a term of two to five years. No post-trial motions had been filed and this Court on August 11, 1966, on appeal, remanded the case for a hearing. The hearing was held, sentence vacated, and post-trial motions nunc pro tunc permitted. These motions were argued and denied at which time a sentence of sixteen months to five years was imposed. This appeal followed.

The question raised by this appeal falls into the category of "stop and frisk" cases which have been giving the courts constitutional jitters. The law as to the extent to which police may act to prevent and detect crime on the city streets, without coming into conflict with the constitutional protection of the rights of individuals is in utter confusion. Mr. Chief Justice Warren in the recent case of Sibron v. New York, 392 U.S. 40, 50, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (1968), said at page 932: "The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case."

The facts in the instant case are as follows: A uniformed police officer stopped appellant on March 13, 1966, at 5:40 p.m., and asked him what he had under a raincoat or topcoat that he was carrying. He was also wearing a topcoat. Appellant answered: "I have a tape recorder under there". The officer asked him

[ 213 Pa. Super. Page 36]

    to identify himself and he took a wallet from his pocket and gave the officer a driver's license. This license bore the name of Robert Rosenfeld, who was described by the license as male, white and 47 years of age. Since appellant was a negro and seemed much younger than 47 (he was, in fact, 35), it was apparent that he was not Robert Rosenfeld. The officer then took him into custody and drove him to the police station.

The real Rosenfeld was in the station when the officer arrived with the appellant. Rosenfeld had parked his automobile about 3:00 o'clock p.m., on Spruce Street about three blocks from where the officer stopped the appellant. On returning to his car at about 7:00 p.m., he found his car had been broken into and his black raincoat, portable tape recorder and wallet were missing. He went to the police station to report the crime and while there the officer brought in the appellant and the stolen articles which Rosenfeld identified.

At the time the officer saw the appellant he was wearing one topcoat and carrying another and according to the officer seemed to be attempting to hide something under the coat he carried. In the officer's opinion he was acting so suspiciously that he accosted him. At this time the officer had no knowledge of the specific offense actually committed nor of any similar law violation in the vicinity. He had no ...


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