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COMMONWEALTH v. DONNELLY (03/31/75)

decided: March 31, 1975.

COMMONWEALTH
v.
DONNELLY, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1971, Nos. 936 and 937, in case of Commonwealth of Pennsylvania v. William Donnelly.

COUNSEL

Marilyn J. Gelb, for appellant.

John H. Isom, Assistant District Attorney, with him 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 Price, J. Jacobs and Hoffman, JJ., concur in the result.

Author: Price

[ 233 Pa. Super. Page 401]

Appellant was found guilty of two counts of receiving stolen goods*fn1 following a jury trial from June 25 to June 29, 1973. He was sentenced on each count to concurrent terms of one to five years imprisonment. In this appeal, appellant raises many contentions of error, all of which we find without merit. We, therefore, affirm the judgment of sentence.

The facts, as found by the lower court, may be summarized as follows: Two witnesses testified to two separate burglaries that occurred in Philadelphia County in early 1971. Salvatore Mergliano testified that on January 25, 1971, his residence was burglarized and a metal box containing a number of United States Series E bonds (22 bonds of $500 denomination and one $25 bond), among other items, were taken. Jules Jazdowskis testified that his residence was burglarized on February 6, 1971, and a number of United States Series E bonds (79 bonds of $50 denomination and three $100 bonds) and jewelry were taken.

Donald Eagle testified that the appellant, William Donnelly, had contacted him by telephone in Florida in June, 1971, and offered to sell $40,000 worth of stolen United States bonds. Mr. Eagle, an informant who possessed an extensive criminal record, had known the appellant since March, 1969. After informing the appellant that he would think over the proposed transaction, Mr. Eagle immediately contacted federal authorities in Florida and reported the incident. In cooperation with federal authorities, Mr. Eagle subsequently arranged to meet the appellant in Philadelphia to arrange the transfer and sale of the stolen bonds. The first meeting was to take place on August 23, 1971.

Prior to this meeting, Mr. Eagle had arranged with federal authorities in Philadelphia to have an interconnecting

[ 233 Pa. Super. Page 402]

    hotel room with Secret Service agents on the twelfth floor in the Penn Center Inn. The agents placed a hidden radio transmitter in Mr. Eagle's room in an air conditioner, and through this device the agents were able to listen to and record the conversation that took place on August 23. This device was placed in the room with Mr. Eagle's full knowledge and consent.

Mr. Eagle further testified that at this meeting appellant brought to Mr. Eagle a sample of the stolen bonds for inspection pursuant to a prior agreement. The stolen bonds were discussed by the parties for a period of one to one-and-one-half hours. During the meeting, Mr. Eagle spelled out the names on the bonds, and they included the names of Mergliano and Jazdowskis. Following this discussion, Mr. Eagle arranged a meeting for the next day for the purpose of exchanging the items and money.

Appellant returned to Mr. Eagle's room in the Penn Center Inn on August 24, 1971, to negotiate the exchange. At this one hour meeting, Mr. Eagle paid $2,500 to the appellant for 135 bonds. Appellant also agreed to send nine $500 bonds to Mr. Eagle for an additional payment of $1,000.

A Secret Service agent testified that during the meeting on August 24, 1971, the listening device implanted in Mr. Eagle's room did not function. The agent then testified that he had listened to the conversation between Mr. Eagle and appellant through the connecting but closed door. At the conclusion of the meeting, agents were dispatched to arrest appellant. The agents found two men at the twelfth floor elevator, and brought them both back to Mr. Eagle, who immediately identified appellant as the individual who had taken part in the transactions. The other man was released. Appellant was then arrested and searched by the federal agents.

[ 233 Pa. Super. Page 403]

In appellant's pocket the agents found nine $500 bonds in the name of Salvatore Mergliano and $2,500 in marked currency previously given to Mr. Eagle by the federal agents for the transaction. In Mr. Eagle's room the agents also found 135 bonds, which were later determined to be bonds stolen from Jazdowskis, Mergliano and others. These 135 bonds were identified by Mr. Eagle as those given to him by the appellant during the transaction. Fingerprint analysis found appellant's fingerprints on an envelope containing the stolen bonds left in Mr. Eagle's room.

Appellant was indicted on two counts each of burglary, larceny and receiving stolen goods. A hearing was held on November 28, 1972, to consider appellant's motion to suppress evidence, and the motion was subsequently denied. At trial, appellant did not testify or present evidence in his defense. Subsequently, a jury returned a verdict of guilty on both indictments of receiving stolen goods. Timely motions for a new trial and in arrest of judgment were filed and denied. This appeal follows the judgment of sentence.*fn2

I.

Initially, appellant contends that his arrest, the search of his person, and the search of the motel room in which the sale of the stolen United States bonds took place, were all illegal and the fruits of those actions should have been suppressed. In support of these contentions, appellant argues that the Commonwealth failed to sustain the burden of proving the legality of the arrest.

It is well established that a police officer is authorized to arrest without a warrant where he has probable cause to believe that a felony has been committed

[ 233 Pa. Super. Page 404]

    and that the person to be arrested is the felon. Draper v. United States, 358 U.S. 307 (1959); United States ex rel. Gockley v. Myers, 314 F. Supp. 839 (E. D. Pa. 1970); Commonwealth v. Jackson, 450 Pa. 113, 299 A.2d 213 (1973); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963); Commonwealth v. Vassiljev, 218 Pa. Superior Ct. 215, 275 A.2d 852 (1971).

Probable cause to justify a warrantless arrest exists if the facts and circumstances known to the officer at the time of the arrest would warrant a prudent man in believing that an offense has been committed, and the suspect was the perpetrator of that offense. Terry v. Ohio, 392 U.S. 1 (1968); McCray v. Illinois, 386 U.S. 300 (1967); Commonwealth v. Smith, supra; Commonwealth v. DeFleminque, 450 Pa. 163, 299 A.2d 246 (1973); Commonwealth v. Brown, 230 Pa. Superior Ct. 214, 326 A.2d 906 (1974). These facts and circumstances, however, are not those that a legal technician might desire when examining the situation in retrospect; but, rather, the practical considerations of everyday life upon which reasonable and prudent men rely. Henry v. United States, 361 U.S. 98 (1959); Draper v. United States, supra; Commonwealth v. Negri, 414 Pa. 21, 198 A.2d 595 (1964). In any event, probable cause means less evidence than that which justifies convictions. Wong Sun v. United States, 371 U.S. 471 (1963); Commonwealth v. Anderson, 224 Pa. Superior Ct. 19, 302 A.2d 504 (1973). See generally Annot., 28 L.Ed. 2d 978 (1971) (collecting cases defining probable cause); 4 Wharton's Criminal Evidence ยง 721 (13th ed. C. Torcia 1973).

A review of the record indicates that the Commonwealth proved that the arresting agents had ample information to believe that probable cause existed and that a crime was being committed within their hearing. The agents were privy to the two ...


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