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COMMONWEALTH v. BROWN (12/11/72)

decided: December 11, 1972.

COMMONWEALTH
v.
BROWN, APPELLANT



Appeals from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1967, Nos. 1003 and 1004, in case of Commonwealth of Pennsylvania v. William Brown.

COUNSEL

Andrea Levin, Assistant Defender, with her Jonathan Miller, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

David Richman, Assistant District Attorney, with him Milton M. Stein, Assistant 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. Dissenting Opinion by Packel, J. Wright, P. J., and Watkins, J., join in this dissenting opinion.

Author: Hoffman

[ 223 Pa. Super. Page 183]

Appellant contends that this Court must hold that a search and seizure was illegal with respect to him because the Supreme Court of Pennsylvania held that the search of an automobile occupied by the appellant and his co-defendant was illegal with respect to the co-defendant, Commonwealth v. Lewis, 442 Pa. 98, 275 A.2d 51 (1971). The facts of the search as set forth in Lewis are identical to the circumstances presented in the instant matter. Appellant is also in the same posture with respect to standing as his co-defendant Lewis. If this Court fails to effectuate the Lewis opinion by holding that the search is valid with respect to the appellant, we would deny appellant the same protection of his constitutional rights as was accorded his co-defendant. See Commonwealth v. Fleming, 221 Pa. Superior Ct. 481, 291 A.2d 874 (1972); Commonwealth v. Fleischman, 221 Pa. Superior Ct. 482, 291 A.2d 874 (1972).

Accordingly, the judgment of the lower court is reversed and a new trial ordered.

Disposition

Judgment reversed and new trial ordered.

Dissenting Opinion by Packel, J.:

Separate appeals were taken by co-defendants William S. Lewis and William H. Brown, who were found guilty of conspiracy and receiving stolen goods. In Commonwealth v. Lewis, 442 Pa. 98, 275 A.2d 51 (1971), the Supreme Court granted Lewis a new trial because evidence introduced at the trial should have

[ 223 Pa. Super. Page 184]

    been suppressed as the fruit of a search for which the police lacked probable cause. In this appeal, Brown contends that since the very same search is ...


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