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decided: September 11, 1969.


Appeal from judgment of Court of Common Pleas of Montgomery County, April T., 1967, No. 348, in case of Commonwealth of Pennsylvania v. David Burns.


Henry L. Menin, for appellant.

Paul W. Tressler, Assistant District Attorney, with him Richard A. Devlin, Assistant District Attorney, Parker H. Wilson, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Watkins, J. Concurring Opinion by Spaulding, J. Hoffman, J., joins in this concurring opinion. Dissenting Opinion by Jacobs, J. Wright, P. J., and Montgomery, J., join in this dissenting opinion.

Author: Watkins

[ 215 Pa. Super. Page 336]

This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division, by the defendant-appellant, David Burns, after his conviction of burglary, larceny, conspiracy to commit burglary and larceny, and illegal possession of burglary tools and carrying a concealed deadly weapon; and from the denial by the court below of his post-conviction motions.

The Gwyn Dale Diner was broken into and burglarized by three men at approximately 2 a.m. on May 5, 1967. The police became aware of the burglary by virtue of an alarm so that they arrived while the crime was being perpetrated. There was testimony that three men were seen coming out of the building. Two of these men, Schuyler and Sullivan, were immediately arrested. The defendant was arrested later at his place of employment. His arrest was brought about by finding of his car parked in the immediate vicinity of the burglarized premises and evidence obtained from the car and motel room, where all three men were staying, as a result of search warrants.

All three men were indicted and on June 21, Schuyler and Sullivan pleaded guilty and were sentenced to pay the costs and to undergo imprisonment for not less than 2 1/2 years nor more than 5 years; sentence was suspended on other indictments.

The defendant pleaded not guilty and on June 26 went to trial. He was convicted of all charges except receiving stolen goods on which the court directed a verdict of not guilty. His post-conviction motions were denied. He was sentenced to pay the costs of prosecution and undergo imprisonment for not less than three years nor more than seven years on the one charge. Sentence was suspended on the other charges.

The appellant contends that he is entitled to a new trial because of admission of evidence obtained by illegal

[ 215 Pa. Super. Page 337]

    search and seizure warrants and because of a conflict of interest of counsel who represented him at trial and also represented the defendants who pleaded guilty.

After the arrest of the two men and failure to apprehend the third, a police officer noticed an automobile parked on the adjoining parking lot. It was the only car parked in the area. The car was later found to be registered in the name of the defendant. The officer went to the car and directed his flashlight into the interior. The key was in the ignition and he noticed two jackets on the rear seat. He took the key out of the car to immobilize it and looked in the coats for identification. Neither disclosed ownership so he restored them to the seat. He then observed from outside the car a motel key on the floor of the car with the name "Colony House Motel, Norristown" inscribed on it. We agree with the Commonwealth that up to this point what he saw was in plain view and what he did to immobilize the car and attempt to determine ownership of the parked vehicle immediately adjacent to the burglarized premises was only permissible police investigation and was not, in fact, a search.

The officer as a result of his visual examination of the interior of the car informed his superior, Sergeant Herr of the police department, that as a result of his investigation, and the location of the car that he was suspicious that the car belonged to the fugitive who was involved in the burglary and that a search warrant should be obtained. In the meanwhile, it was discovered that three men had registered at the motel in Norristown. The two under arrest and a third man, the defendant, who turned out to be the owner of the automobile. Under these circumstances, the officer also asked his superior to secure a search warrant for the motel room.

A number of articles were found in the car as described in the warrant including tools, which the Commonwealth

[ 215 Pa. Super. Page 338]

    contends were burglary tools, and a revolver that connected the defendant with the crime. In the motel where all three stayed registered under fictitious names the jacket that the officer had seen on the rear seat of the defendant's car was found so that it was removed between the time that it was observed by the officer and the search of the car by warrant.

It is quite likely that if not for the prompt action of the police officer in removing the key the car would have been gone by the time the officer returned with the warrant. Someone returned and removed the jacket and as the two men were in custody the inference is clear that it must have been the owner of the car and the jacket who removed it to the room where he and the others were staying.

"The right to search an automobile is not unlimited, but searches of them must be viewed in the light of the obvious capability of a vehicle to remove the criminal, his victim, his loot, his weapon, his tools and contraband from the locale of the crime . . ." Commonwealth v. Katz, 202 Pa. Superior Ct. 629, 634, 198 A.2d 883 (1964). See, also, Chimel v. Calif., 395 U.S. 752, 23 L. Ed. 2d 685.

Sergeant Herr of the police department who swore to the information to obtain the warrant was not at any time prior to its issuance on the scene of the crime. The information given to the magistrate was based on the account given to him of all the circumstances by patrolmen who had been on the scene. It is true that the information and affidavit to obtain the warrant were silent as to this fact.

"Despite earlier cases to the contrary it is now settled that at least in the federal courts hearsay evidence may provide the probable cause necessary for the issuance of a search warrant where a substantial ...

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