Appeal from order of the Superior Court, Oct. T., 1971, No. 897, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1970, No. 171, in case of Commonwealth of Pennsylvania v. Elwood Pegram.
John W. Packel, Assistant Defender, with him Jonathan Miller, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.
Linda Conley, Assistant District Attorney, with her James T. Ranney 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.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones dissents.
Appellant, Elwood Pegram, was arrested on October 27, 1970, and charged with burglary, larceny and receiving stolen goods. A timely filed pretrial motion to suppress evidence was heard and denied. In February, 1971, appellant's first trial resulted in a mistrial, due to the jury's inability to reach a verdict. Thereafter, at a second trial in March of 1971, appellant was found guilty of burglary and larceny and not guilty of receiving stolen goods. Post-trial motions were denied and appellant was sentenced to serve a 6 month to three year term of imprisonment.
The Superior Court affirmed in an opinionless per curiam order, and this Court granted allocatur. We now reverse and remand for a new trial.
Appellant on this appeal challenges the trial court's refusal to suppress evidence seized by the police, where, at the time of the search, the officers had no reason to believe that appellant was engaged in criminal activity or armed and dangerous.*fn1 For the reasons set out below, we agree with appellant's contention.
The facts, which are not in dispute, are as follows: On October 27, 1970, at approximately 1:00 P.M., two police officers responded to a call that a burglary was in progress at 4232 Chestnut Street in the City of Philadelphia. Upon arriving, the officers entered the building, whereupon they discovered that the rear door to a first floor apartment had been forced open. A search of the area yielded no clues. The officers then departed. While outside, however, they noticed a man, later identified as appellant, walking down an alley which runs parallel to Chestnut Street. The appellant looked towards the officers, and then began to run in the direction in which he had been walking. The officers gave chase, and approximately two blocks later, rediscovered appellant, again walking. The officers stopped their vehicle and called for appellant to come over, which appellant then did voluntarily. Officer Reid asked appellant his name, and "patted him down." This search yielded a knife, and appellant was arrested. The officers then conducted a full search and discovered on appellant's person a number of items which were later identified as having been taken from the burglarized
apartment. Appellant was thereafter charged with the crimes which are the basis of the instant appeal.
The Commonwealth concedes that probable cause*fn2 did not exist for appellant's arrest at the time he was ultimately "stopped."*fn3 Such a concession on this record is correct, where the only suspicious facts at the officers' disposal were that a burglary had been committed (with no clues) and that a man, not ...