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HARVEY APPEAL (09/15/72)

decided: September 15, 1972.

HARVEY APPEAL


Appeal from order of Court of Common Pleas, Family Court Division, of Philadelphia, Jan. T., 1972, No. 67, in matter of William Harvey, a minor.

COUNSEL

Richard H. DiMaio, Assistant Defender, with him Thomas C. Carroll, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Judith Dean, Assistant District Attorney, with her 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, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J. Wright, P. J., Watkins and Jacobs, JJ., would affirm on the opinion of the court below.

Author: Hoffman

[ 222 Pa. Super. Page 223]

This is an appeal from appellant's adjudication as a juvenile delinquent. Appellant contends that the lower court erred in denying his motion to suppress, which was duly filed in the Family Division of the Court of Common Pleas.

On January 3, 1972, Officers Roberts and Stevenson were patrolling the area of Woodstock and Norris Streets in an unmarked police vehicle. According to Officer Roberts' testimony, the officers were assigned to that area ". . . specifically to try to curb the number of gang shootings which had taken place in the area, and also the shooting of residents and bystanders to these gang activities." At approximately 8:55 p.m. the officers were proceeding west on Norris Street, approaching Woodstock Street, when they observed three

[ 222 Pa. Super. Page 224]

    young males, including appellant, going north on Woodstock from Norris. Officer Roberts testified that the police vehicle was brought to a stop and both officers approached the three males on foot "for investigation." The officer then stated that "the defendant appeared to move away from the other two boys." The officer then called to appellant, and when appellant approached the officer, appellant was pulled by his coat and belt. The officer stated that he felt an object inside appellant's left coat pocket. Officer Roberts then "frisked" appellant and seized a revolver.

The lower court, in denying appellant's motion to suppress the revolver, never reached the merits of the allegation that there had been an illegal search and seizure, rather he held that "a broad application of this phase of 'Due Process' in juvenile proceedings does damage and harm to the budding character of the child. Unless the rights of the child have been blatantly and flagrantly abused the filing of a Motion to Suppress is ill advised for it places a pale technicality in a position of priority over the true purpose of the Court which is the salvation of the child."

I

The Commonwealth in its brief argues that we do not have to reach the question of whether Fourth Amendment rights must be applicable in juvenile proceedings, because appellant's Fourth Amendment rights were not violated by the seizure and subsequent search of his person. We are of the opinion, however, that appellant's Fourth Amendment rights have been violated.

It is clear that a policeman may in appropriate circumstances and in an appropriate fashion approach a person on the street for the purpose of investigating possible ...


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