Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1973, No. 2, in case of Commonwealth of Pennsylvania v. Charles Dennis.
Douglas Riblet and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
Neil Kitrosser, David Richman, 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 Van der Voort, J. Jacobs, J., concurs in the result. Dissenting Opinion by Hoffman, J.
[ 236 Pa. Super. Page 349]
Appeal is taken to this Court from Judgment of Sentence rendered by Judge Calvin T. Wilson following non-jury trial on September 13, 1974. Appellant was adjudged guilty of possession with intent to deliver a controlled substance.*fn1 Oral motions for new trial and in arrest of judgment were made and denied. Prior to commencement of trial, Judge Wilson heard argument as to appellant's suppression of evidence claim; relief was denied, and the testimony was incorporated in the
[ 236 Pa. Super. Page 350]
trial proceedings which began immediately thereafter.
On October 21, 1972, the Philadelphia Police Department had received a call that two men were seen prowling in the vicinity of 48th and Sansom, a residential area. Two plainclothes officers in an unmarked car responded and observed appellant and his co-defendant, one Shelton Gregor, one of whom went up on a porch. Two other officers, uniformed and in a marked car, came to the area and also observed the same things. Each group of officers observed the two men walk a distance together, part, walk in opposite directions, and then come together again. This took place over a period of about ten minutes. Shortly appellant and co-defendant began to enter an automobile parked nearby, at which time the uniformed officers pulled their car into position so as to block appellant's egress; and the plainclothes officers approached the car on foot. Thereupon, appellant uttered an oath and ran. He was stopped and was arrested, together with co-defendant. Search incident to arrest followed. An officer removed from appellant's right rear pocket a package eight by five inches in size, wrapped in foil and containing six bundles, each of which contained 25 glassine packages of a white powder suspected, and later established, to be heroin.
Appellant argues that there was no probable cause for arrest and that evidence found in a search incident thereto should have been suppressed. We disagree. It is clear that a warrantless arrest must be supported by the existence of probable cause. See Commonwealth v. Anderson, 224 Pa. Superior Ct. 19, 302 A.2d 504 (1973). "The evidentiary use of evidence seized without probable cause to arrest or search is likewise proscribed." Anderson, supra, at Superior Ct. 22. To determine the existence of probable cause, we look to whether the police officers reasonably could have believed that crime was afoot; "'[i]t is only the probability, and not a prima facie showing, of criminal activity that is the standard of probable
[ 236 Pa. Super. Page 351]
cause. Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223 (1964).'" Commonwealth v. Murray, 437 Pa. 326, 329, 263 A.2d 886, 888 (1970). It is the coalescence of circumstances in the instant case which convinces us that there existed probable cause to arrest for prowling. The radio call regarding prowling, although unsubstantiated, alerted the police. Observation of the appellant and co-defendant showed that they were wandering furtively, up and down the sidewalks of a residential area and going up onto a porch of one of the homes at night. When challenged by the police, appellant began to run. We hasten to point out that none of the above, standing alone, would give probable cause -- not the unsubstantiated report of an informant, see Commonwealth v. Falk, 221 Pa. Superior Ct. 43, 290 A.2d 125 (1972); not mere presence of the men in the area, see Anderson, supra; not the flight of appellant, see Commonwealth v. Pegram, 450 Pa. 590, 301 A.2d 695 (1973). We hold that the above circumstances taken together as a whole, placed the officers on inquiry, led them to believe that a crime was being committed and constituted probable cause for arrest, Commonwealth v. DeFleminque, 450 Pa. 163, 299 A.2d 246 (1973), and Commonwealth v. Young, 222 Pa. Superior Ct. 355, 294 A.2d 785 (1972).
There being probable cause to arrest, a search incident thereto is permissible. "It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment." U. S. v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). In this case, we find probable cause to arrest, and we further find that a search made ...