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COMMONWEALTH v. CLARKE (06/22/71)

decided: June 22, 1971.

COMMONWEALTH
v.
CLARKE, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1969, No. 1360, in case of Commonwealth of Pennsylvania v. Calvin Clarke.

COUNSEL

John O. Cole and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

Stephen J. Margolin and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Spaulding, J. Wright, P. J., and Watkins, J., would affirm on the opinion of Judge Sporkin of the court below.

Author: Spaulding

[ 219 Pa. Super. Page 341]

Appellant Calvin Clarke was arrested on April 23, 1970 and charged with carrying a concealed deadly

[ 219 Pa. Super. Page 342]

    weapon. His motion to suppress was denied by the Honorable Thomas Reed of the Court of Common Pleas of Philadelphia. On September 7, 1970, he was found guilty by the Honorable Maurice Sporkin sitting without a jury. Post trial motions were denied and sentence was imposed. This appeal is from the ruling of Judge Reed at the suppression hearing.

The circumstances leading to appellant's arrest were not, in our judgment, sufficient to establish probable cause for arrest under the standards enunciated in Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969).

The arresting officer had been cruising in a patrol car in the vicinity of 15th and Westmoreland Streets in North Philadelphia. Stopping at an intersection, the officer observed appellant talking in a pay telephone booth. Apparently after seeing the police car, appellant hung up the phone and began to "hurriedly" walk north on 15th Street. The officer observed a "bulge" in appellant's rear pocket and he subsequently detained, searched and arrested him.*fn1 He further testified that he did not see appellant committing any crime and that he had no information that a crime had been committed in that neighborhood.

In Hicks, supra, our Supreme Court held that in order for a precautionary search and seizure to be legitimate: ". . . there must first exist on the part of the police a reasonable belief that criminal activity is

[ 219 Pa. Super. Page 343]

    afoot and that the seized person is armed and dangerous. The police must prove that specific conduct of the seized person, observed by them, justified and made reasonable their belief that criminal activity was afoot and that the seized person was armed and dangerous. The instant record is devoid of such necessary proof. Hence, the seizure was not 'justified at its inception' and was ...


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