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COMMONWEALTH v. ELLIS (03/31/75)

decided: March 31, 1975.

COMMONWEALTH
v.
ELLIS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1974, No. 770, in case of Commonwealth of Pennsylvania v. William R. Ellis.

COUNSEL

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

Marianne E. Cox, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy 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 Hoffman, J.

Author: Hoffman

[ 233 Pa. Super. Page 171]

The sole contention before this Court is that appellant's conviction was based on evidence obtained as a result of an illegal search and seizure. We find no merit to this claim.

On January 24, 1974, during the early morning hours, Officer Gary Merlin of the Philadelphia Police Department was assigned to foot patrol in the area of 13th and Market Streets. At approximately 2 a.m., he observed appellant walking south on 13th Street, near Cuthbert Street. Merlin testified at the pre-trial suppression hearing that appellant was carrying what the officer believed was an adding machine. In fact, appellant had a checkwriting machine. As the officer approached, the appellant placed the checkwriter behind his back. The officer attempted to question the appellant about the "adding machine", but he received no answer. At that moment, Merlin seized the checkwriter from the appellant. After reading the appellant his "Miranda" warnings, Merlin questioned appellant about the machine. Appellant told the officer contradictory stories about how he acquired the checkwriter and about where he was taking the machine.*fn1

At that point, Merlin was joined by another officer in a patrol car. Appellant was placed under arrest and

[ 233 Pa. Super. Page 172]

    taken to the 6th District station. During appellant's detention at the police station, the police received a report of a burglary and theft of a checkwriting machine. The report came from the assistant manager of Partime, Inc., a company located near 13th and Cuthbert where appellant was arrested. The assistant manager subsequently identified the checkwriter as the one taken on January 24.

Appellant was indicted for burglary, theft, and receiving stolen property. Appellant filed a motion to suppress which was heard on April 1, and denied on April 2, 1974. Thereafter, on the same day, the appellant waived his right to trial by jury and was tried by the judge who had decided his suppression motion. He was found guilty of receiving stolen property, but acquitted of the other charges. The court sentenced appellant to a term of six to twenty-three months' imprisonment.

The appellant contends that the officer acted on mere suspicion when he made the initial seizure of the checkwriting machine, thereby violating appellant's right under the Fourth Amendment to be free from unreasonable searches and seizures.

There is no doubt that a police officer is justified in making a brief investigatory stop of an individual who raises the officer's suspicion "in order to determine his identity or to maintain the status quo momentarily." Adams v. Williams, 407 U.S. 143, 146 (1972); see also Terry v. Ohio, 392 U.S. 1 (1968). After the initial stop, an officer must have probable cause before he can effect an arrest: "Probable cause to arrest depends upon whether, at the moment the arrest was made, the facts and circumstances within the arresting officer's knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing ...


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