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COMMONWEALTH v. HOLLOWAY (06/21/74)

decided: June 21, 1974.

COMMONWEALTH
v.
HOLLOWAY, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1972, No. 436, in case of Commonwealth of Pennsylvania v. Barney Holloway.

COUNSEL

Holly Maguigan and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

Louis A. Perez, Jr., and David Richman, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J.

Author: Cercone

[ 229 Pa. Super. Page 129]

The instant appeal comes before us after a non-jury trial, wherein the court found the appellant, Holloway,

[ 229 Pa. Super. Page 130]

    guilty of receiving stolen goods. Holloway raises two issues for our consideration: (1) That there was no probable cause to arrest him prior to the officer's ascertaining that the goods were stolen; (2) That there was insufficient evidence to establish that he had the guilty knowledge required to sustain a charge of receiving stolen goods.

On the evening of April 1, 1972, a police officer was patrolling a high burglary area in Philadelphia. At that time the officer observed the appellant put a large object on the sidewalk and walk away from it. He then stopped the appellant ten to twenty feet from the object and asked the appellant what it was that he had just abandoned, but the appellant denied that he had abandoned anything. The officer then walked him back to the object which turned out to be a stereo amplifier. Although the officer had no personal knowledge that the amplifier was stolen, he took the appellant and the amplifier to the police station for further investigation. The officer thereupon discovered that the amplifier had indeed been recently reported as stolen.

Prior to trial both the assistant district attorney and the public defender agreed to stipulate that the amplifier was taken from an apartment and that the appellant did not have permission to take it. The apparent intention for so doing was to avoid the necessity of bringing the owner in as a witness.

There was probable cause to make an arrest when the appellant denied that he had abandoned the amplifier despite the fact that the officer saw him do so. Probable cause to arrest exists if the facts and circumstances within the officer's knowledge are sufficient to warrant a man of reasonable caution in the belief that the suspect had committed or is committing a crime: Commonwealth v. Murray, 437 Pa. 326 (1970). The officer under the instant facts had probable cause to

[ 229 Pa. Super. Page 131]

    believe that criminal activity was afoot. He was properly suspicious about someone in a high burglary neighborhood carrying part of a stereo set on the street after dark. As the officer testified: "I figured, you know, the way he put it down and walked away from it, I figured something was wrong here, you know, more or less he was trying to hide something." This belief was solidified when the appellant denied ever having had possession of it. It is only probability, and not a prima facie showing of criminal activity that is the standard of probable cause for arrest: Id. If the officer had known of a ...


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