Appeals from judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1971, Nos. 831 and 832, in case of Commonwealth of Pennsylvania v. Thomas Mitchell.
Francis S. Wright, Assistant Defender, 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, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Packel, J. Wright, P. J., Watkins and Cercone, JJ., would affirm the judgments on the opinion of Judge Joseph L. McGlynn, Jr. in the court below.
[ 222 Pa. Super. Page 336]
The defendant, tried with three others, was alone found guilty of aggravated robbery and conspiracy. He contends, first, that the court below should have suppressed evidence obtained incident to an unlawful arrest and, second, that the evidence was insufficient for either conviction.
The undisputed evidence was that a woman's pocketbook was taken from her person by an unidentified individual. Shortly thereafter police officers, patrolling 12 blocks away and unaware of the incident, halted an automobile that they observed being driven without lights and in a reckless manner. The defendant was
[ 222 Pa. Super. Page 337]
sitting next to the operator. Two men were in the back seat. While checking whether the car was stolen, the police noticed a woman's pocketbook lying on the front seat at a place between where the driver and the appellant had been sitting. After the four men alighted from the car the defendant suddenly ran away. He was caught and brought back by another policeman. The four were taken to a police station. An examination there of the woman's pocketbook revealed that it had been stolen.
At the trial one co-defendant testified for the Commonwealth. He stated that the appellant was a hitchhiker who had entered the car a short time before it was stopped by the police. He also testified that he and his two friends had been riding for 45 minutes prior to picking up the appellant and that they were not involved in the taking of the purse. The indictments against this co-defendant and another co-defendant were nol prossed and a verdict of not guilty was directed by the court as to the third co-defendant.
I. Validity of the Arrest
The theme of the Fourth Amendment is the protection of privacy from unwarranted intrusion by those clothed with governmental powers. This important public policy is starkly underscored by the observation of the Supreme Court in Henry v. United States, 361 U.S. 98, 104 (1959), that: "An arrest is not justified by what a subsequent search discloses. Under our system suspicion is not enough for an officer to lay hands on a citizen. It is better, ...