Appeal from order of Superior Court, Oct. T., 1966, No. 611, affirming order of Court of Quarter Sessions of Philadelphia County, Aug. T., 1965, No. 538, in case of Commonwealth of Pennsylvania v. Sydney Brayboy.
Sydney E. Brayboy, appellant, in propria persona.
James D. Crawford, Assistant District Attorney, with him Michael J. Rotko and Alan J. Davis, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Concurring Opinion by Mr. Chief Justice Bell.
On March 10, 1966, after a trial without a jury, Sydney Brayboy was convicted of the crime of burglary. Post-trial motions were dismissed and, on April 21, 1966, a sentence of imprisonment was imposed. No direct appeal from the judgment was filed. Subsequently, Brayboy instituted a proceeding under the Post Conviction Hearing Act of January 25, 1966, P. L. (1965) 1580, 19 P.S. § 1180-1 et seq. (Supp. 1968). His petition was dismissed without a hearing, and, on appeal, the Superior Court unanimously affirmed. 209 Pa. Superior Ct. 10, 223 A.2d 878 (1966). Because of the serious constitutional question involved, we granted allocatur.
Brayboy was taken into custody by the police without a warrant when they stopped and questioned him on a public street and discovered that he had concealed on his person certain articles which the police believed had been stolen in a recently reported burglary. The articles were seized and introduced against him at trial, over objection, and after motions to suppress had been denied.*fn1 A determination of whether or not this evidence should have been excluded as having been
secured in violation of Brayboy's rights as guaranteed by the Fourth and fourteenth Amendments depends upon whether he was lawfully arrested before the search and seizure.
The pertinent facts disclosed by the record and uncontradicted during the trial or the hearing on the motions to suppress are these:
On July 16, 1965, at about 2:10 a.m., two uniformed police officers of the City of Philadelphia, one of whom had ten years experience, received a report over their car radio that a wig shop in the area in which they were cruising had been burglarized.
About ten minutes later and about twelve blocks from the address of the reported burglary, they noticed that a man who was walking along the street had a large bulge under his shirt. The officers pulled the police car abreast of him to take a closer look. He momentarily looked at the officers and, before a word was spoken, started to run. The officers, feeling that "something was wrong," pursued and "apprehended him" about half a block away. They noticed a fresh cut on his right hand. When they demanded to know what was causing the bulge under his shirt, he "took from beneath his shirt a plastic bag which contained three women's wigs." The policemen then asked who he was and where he got the wigs, but he refused, or at least failed, to respond. The wigs were seized and the man was taken to a police precinct and booked on a charge of intoxication. Later that morning, investigation revealed that the wigs had been stolen earlier the same morning from a wig shop located near the point of arrest. This was not the same burglary, ...