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COMMONWEALTH v. MURRAY ET AL. (11/21/73)

decided: November 21, 1973.

COMMONWEALTH
v.
MURRAY ET AL., APPELLANTS



Appeal from judgment of sentence of Court of Common Pleas of Erie County, No. 32 of 1970, in case of Commonwealth of Pennsylvania v. Donald Vincent Murray and Paul Herman Adams.

COUNSEL

Jess S. Jiuliante, Robert D. Hain, and Jiuliante, Falcone, Jones, Shapira & Vendetti, for appellants.

Alois Lubiejewski, Assistant District Attorney, and R. Gordon Kennedy, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaeth, J., In Support of Reversal. Hoffman and Cercone, JJ., join in this opinion in support of reversal.

Author: Per Curiam

[ 226 Pa. Super. Page 102]

The six judges who heard and decided this appeal being equally divided, the judgment of sentence is affirmed.

Disposition

Judgment of sentence affirmed.

Opinion by Spaeth, J., In Support of Reversal:

Appellants, Donald Vincent Murray and Paul Herman Adams, are attacking their convictions of burglary and possession of burglary tools on the grounds that the fruits of an illegal stop, or of an illegal arrest, or of an illegal search pursuant to a warrant were admitted into evidence against them in violation of their constitutional rights as guaranteed by the Fourth and Fourteenth Amendments of the United States Constitution. I find their claim with regard to the stop to be meritorious and therefore, without reaching the other grounds alleged, would reverse and remand for a new trial.

On September 2, 1969, around 11:40 p.m., there was an attempted burglary at the Robert Hall's Clothing Store in Millcreek Township, Erie County, Pennsylvania. In responding to a burglar alarm that was triggered in the attempt but sounded only at the police station, Officer Stevenson of the Millcreek Township Police Department reached the scene in time to get a fleeting glimpse of the shadow of a person leaving the area of the store on foot. The officer was unable to describe the person. A cursory search of a trailer park adjacent to the store did not produce the person, nor any suspects. The officer found, still stuck in the door, a pry bar that had apparently been used to jimmy it partially open. Within minutes, Officers Urraro and Kensil arrived on the scene and were advised of the shadow. They proceeded to search the area by cruising around in their patrol car. About an hour after the initial alarm, they saw a 1962 Chevrolet pull into the

[ 226 Pa. Super. Page 103]

    driveway of a house*fn* located near the store, stop for a few moments, and then pull out again. The Chevrolet was not the only car the officers had seen that night, but because of its behavior, which they considered "suspicious", they decided to follow it and did so for about a half mile. During this time, no traffic laws were violated, nor was the car driven in an unusual manner. Finally, the officers motioned the car over and stopped it on the side of the road. Officer Urraro got out of the patrol car and went to the passenger side of the car. At some point soon thereafter, he shined a flashlight into its rear interior. Lying on the floor behind the driver's seat but visible from the outside were a hammer and railroad spike. Upon request, the three occupants of the car -- appellant Adams (the driver), appellant Murray, and a third person (who was cleared of all charges) -- produced proper identification. On the basis of Officer Urraro's observations, Adams was asked to follow the officers, whose ranks had by then been augmented by others, including Officer ...


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