Appeal from order of Superior Court, Oct. T., 1966, Nos. 523 and 524, affirming judgment of Court of Quarter Sessions of Philadelphia County, Feb. T., 1966, Nos. 2655 and 2657, in case of Commonwealth v. Walter Hicks.
John W. Packel, Assistant Defender, with him Melvin Dildine, Assistant Defender, and Herman I. Pollock, Defender, for appellant.
James D. Crawford, Assistant District Attorney, with him Harold K. Don, Jr., Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Cohen concurs in the result. Mr. Chief Justice Bell dissents.
Walter Hicks, after a trial without a jury, was convicted of the crimes of burglary, attempted burglary and possession of burglary tools. Post-trial motions were dismissed and prison sentences were imposed on the first two charges. On appeal the Superior Court affirmed the judgments with Judge Hoffman dissenting, 209 Pa. Superior Ct. 1, 223 A.2d 873 (1966). We granted allocatur.
Hicks was stopped on a street in Philadelphia by two policemen without a warrant. A "patting down" of his person revealed that he had a penknife with a three inch blade in one of his pockets. The knife was taken from him and later introduced at trial, over objection, as a burglary tool. It is contended that the knife was secured through an unreasonable search and seizure in violation of the guarantees secured by the Fourth and Fourteenth Amendments and that evidence thereof should be excluded.
The pertinent facts are briefly these:
On February 22, 1966, at about 3:45 p.m., a Mr. Lloyd and his wife returned to a building on Lombard Street in Philadelphia where they resided in an apartment. While walking up the stairs they saw an unknown man, later identified as Hicks, standing on the level between the second and third floors. Mr. Lloyd
asked Hicks what he was doing there. He replied that he was looking for "R. J. Reynolds." Mr. Lloyd told him that no such person lived in the building and asked Hicks how he had gained entrance to the building since the front door could be opened only by a key or by a buzzer from the inside. Hicks made a vague reply and left.
When the Lloyds ascended to their third floor apartment, they discovered that the door leading therein from the hall had been tampered with. The wood around the lock had been dug out and chips of wood and paint were lying on the floor. Mrs. Lloyd immediately phoned police headquarters and related everything that had occurred. She described the stranger seen on the steps as a Negro in his thirties with a mustache and wearing a brown coat. She also described his height and weight.
The above information was relayed by headquarters to a police officer, named Closkey, who was on patrol in the area. At about 4:30 p.m., Closkey and another officer saw Hicks walking on the street approximately four blocks from the location of the Lloyd apartment. They stopped him ...