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COMMONWEALTH v. MELNYCZENKO (04/22/75)

decided: April 22, 1975.

COMMONWEALTH
v.
MELNYCZENKO, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Berks County, No. 563 of 1972, in case of Commonwealth of Pennsylvania v. Peter Melnyczenko.

COUNSEL

A. Anthony Kilkuskie, Assistant Public Defender, for appellant.

Grant E. Wesner, Deputy District Attorney, and Robert L. VanHoove, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J. Van der Voort, J., concurs in the result. Concurring Opinion by Jacobs, J.

Author: Spaeth

[ 234 Pa. Super. Page 319]

At 9:00 p.m. on December 9, 1971, Ethel Shingle returned from a visit to her husband in the hospital to discover that their home had been burglarized and ransacked. Among the items taken were a shotgun, a rifle, a pistol, two watches, and a ring. The police were summoned, and they took some items from the premises to check for fingerprints.

At 1:38 a.m. on February 19, 1972, Patrolman Speth of the Spring Township police went to the Peiffer Grocery Store in West Wyomissing in response to a radio call that a burglary was in progress. At the store he met the owner and Chief Schlegel. While the patrolman consulted with the owner inside the store, Chief Schlegel saw footprints in the freshly fallen snow, and began to follow them from the back door of the store. In the meantime, the patrolman went out of the front door of the store, and saw appellant walk down the street and begin to get into a car. He asked appellant for some identification. During this exchange Schlegel appeared, still following the footprints in the snow, and discovered they led to where appellant was standing. Appellant was then placed under arrest for the burglary of the store. A subsequent search of appellant at the police station revealed, among other things, a wristwatch bearing the inscription "Albert C. Shingle, 25 years with the Delp Company." This was one of the items stolen in the December

[ 234 Pa. Super. Page 3209]

, 1971, burglary of the Shingle home. Appellant's fingerprints were taken and comparison revealed that two of the fingerprints found at the Shingle home were his.

On March 19 and 20, 1973, appellant was tried before Judge Hess and a jury for the burglary of the Shingle home and was found guilty of burglary and larceny (and innocent of receiving stolen goods). Post-trial motions followed and were denied, and on August 28, 1973, sentence was imposed. This appeal is from that sentence.

The burglary of the grocery store is relevant to this case only as it pertains to the circumstances surrounding the arrest of appellant and the subsequent discovery of the wristwatch. Appellant claims that Patrolman Speth had no right to stop him for identification, and that therefore the evidence later seized should have been suppressed. We disagree. Appellant was not searched when the patrolman stopped him. Whether or not the patrolman had probable cause to arrest appellant, he was justified under the circumstances in stopping him to determine identity: appellant was near the scene of the burglary that had just been committed; it was an early hour of the morning; and appellant was the only person on the street. In Terry v. Ohio, 392 U.S. 1 (1968), the seminal decision on police stops, the Supreme Court recognized that such a limited investigatory stop is not unconstitutional, and that indeed it is a legitimate police function. "One general [governmental] interest is of course that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Id. at 22. We need not decide whether any further investigation, such as a search or frisk of appellant, would have been justified under Terry, because none was made, since within minutes after the stop Chief Schlegel finished tracking down

[ 234 Pa. Super. Page 321]

    appellant and placed him under arrest. This arrest was clearly based upon probable cause, and appellant does not claim otherwise; he only challenges the stop by Patrolman Speth. Since that stop was proper, it did not vitiate the arrest. There is thus ...


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