Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1965, No. 1025, in case of Commonwealth of Pennsylvania v. James Johnson.
Barbara Bailey and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
Milton M. Stein, Assistant District Attorney, 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. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissenting opinion.
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Dissenting Opinion by Hoffman, J.:
This is an appeal from the denial of a petition filed under the provisions of the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, § 1, et seq., 19 P.S. § 1180-1, et seq. Appellant was convicted of burglary and larceny at the December Sessions, 1965, and he appealed the denial of his pretrial motion to suppress to this Court. On April 12, 1967, this Court affirmed appellant's conviction without opinion. Appellant contends in this appeal that he is entitled to a new trial on the basis of the Pennsylvania Supreme Court's decision in Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969).
The circumstances of appellant's arrest are as follows: On December 3, 1965, at about 5:00 p.m., two police officers on duty in their patrol car observed a group of men on a street corner "playing fisticuffs and using a little profanity." A group of onlookers had gathered, and they cheered and encouraged the men who were involved in this horseplay. Without getting out of their car, the officers told the group to "knock
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off the horseplay and move along." The group dispersed, some of the men going inside a bar and some walking away. Appellant and another man, both of whom had been in the group, were among those who walked away. They turned a corner, and the officer driving the patrol car happened to turn the same way. As the officer turned the corner, the other officer in the car noticed that appellant and his companion "appeared to be picking up a little pace in their walk." This officer remarked to the officer driving the car that it looked to him as though the men ". . . were walking at an extra fast pace to avoid us, any further contact with us." The officers then drove alongside ...