Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1973, No. 2315, in case of Commonwealth of Pennsylvania v. Gilbert Stratton.
John Bartle, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.
James Garrett, Assistant District Attorney, with him David Richman, Mark Sendrow, and Steven H. Goldblatt, 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 Watkins, P. J. Jacobs, J., concurs in the result. Dissenting Opinion by Hoffman, J.
[ 231 Pa. Super. Page 93]
This is an appeal from an order of the Court of Common Pleas affirming the judgment of sentence of the Municipal Court of Philadelphia finding the defendant, Gilbert Stratton, after a trial without a jury, guilty of violation of the Uniform Firearms Act and carrying a concealed deadly weapon. He was sentenced to two (2) years probation. The Writ of Certiorari was granted for review of the denial of the defendant's pre-trial motions before the Municipal Court and after hearing the action of the Municipal Court was affirmed and the certiorari dismissed.
His appeal is based on the alleged illegality of the seizure of the firearm. The defendant claims that the court below erred when it admitted the firearm taken from him into evidence on the ground that the seizure was constitutionally infirm because the defendant had not engaged in any conduct leading reasonably to the conclusion that he was involved in criminal activity.
At the trial, a Philadelphia police officer testified that he observed the defendant inside the doorway of a laundromat, which was closed at the time, which was at 12:08 A.M. on May 25, 1973. The doorway was approximately twelve (12) feet from the curbside and there was a twelve (12) foot walkway leading from the pavement to the door of the laundromat. The defendant, upon observing the officer, came out of the walkway, and proceeded at a fast pace to walk away from the scene.
The officer stopped the defendant and frisked him whereupon he discovered that the defendant was carrying an unloaded .32 caliber revolver in his right coat
[ 231 Pa. Super. Page 94]
pocket and .32 caliber cartridges in his left coat pocket. He took the defendant back to the laundromat doorway, but discovered no tampering with the door.
The sole question in this case is whether the officer had sufficient cause to stop and frisk the defendant under the above recited facts. Good police work under these circumstances would demand an investigation and under the circumstances a stop and frisk.
In Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the United States Supreme Court enunciated the principle that a warrantless search may be made of a suspect's outer clothing when incident to a lawful arrest. The policy of this rule is to protect police officers in the performance of their duties. Our Supreme Court of Pennsylvania set the standard for determining whether seizures are lawful in such situations in the case of Commonwealth v. Hicks, 434 Pa. 153, 158-159, 253 A.2d 276 (1969). In Hicks, supra, the court said: "Even if probable cause to arrest is absent, the police officer may still legitimately seize a person, such as Hicks was seized in this case, and conduct a limited search of the individual's outer clothing in an attempt to discover the presence of weapons which might be used to endanger the safety of the police officer and others, if the police ...