Appeals from judgments of sentence of Court of Common Pleas of Lancaster County, Nos. 285 and 286 of 1974, in the interest of: Michael David Stoutzenberger, a minor, and Commonwealth of Pennsylvania v. Earl Jay Stoutzenberger.
Penn B. Glazier and J. Elvin Kraybill, Assistant Public Defenders, for appellants.
Henry S. Kenderdine, Jr., Assistant District Attorney, and D. Richard Eckman, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.
[ 235 Pa. Super. Page 502]
The issue presented by this appeal is whether the police had probable cause to arrest appellants. If the arrest was invalid, any evidence directly obtained therefrom should have been suppressed.
At approximately 1:30 on the afternoon of November 18, 1974, two boys entered Schwartz's Grocery Store in Columbia, Pennsylvania. While Mr. Schwartz, the proprietor, was getting some ice cream in the back of the store for one of the boys, the other boy allegedly reached into the cash register taking $35.00 in five dollar bills. Within minutes of their departure, Mr. Schwartz noticed that all the five dollar bills in the cash register were gone and called the police.
An officer at the police station took the call at 1:41 p.m. and in turn radioed the information to a Sergeant Smith, who was driving in a patrol car. After receiving a description of the boys, Sergeant Smith saw appellants, who are brothers, hitchhiking across the bridge to Wrightsville. The sergeant notified the Wrightsville police and the boys were apprehended and taken to the Columbia Police Station at 3:10 p.m.
After their return, Sergeant Smith told the boys to empty their pockets. One boy produced $12.00 in cash and the other produced $16.00. Mr. Schwartz was also contacted and informed that the police "felt they had the boys." Upon his arrival at the police station, Mr. Schwartz saw the boys and identified them as the thieves. Soon thereafter, Sergeant Smith advised appellants of their Miranda*fn1 rights. Then, according to the sergeant, the boys admitted that they had taken the money.
[ 235 Pa. Super. Page 503]
The next day two petitions were filed by Sergeant Smith in the lower court alleging that the appellants had committed delinquent acts by taking $35.00 from Schwartz's Grocery Store. A hearing was held on December 5, 1974, and the boys were adjudicated delinquent by the court below. This appeal followed.
At the outset of the hearing defense counsel moved for the suppression of the statements, identification, and other physical evidence on the ground that the arrest of appellants was illegal.*fn2 The lower court allowed argument on the motion at the end of the hearing. However, in the opinion of the court below, probable cause for the arrest was established by the record. We disagree and reverse.*fn3
"In determining the presence of probable cause '[t]he crucial test is whether there were facts available at the time of the initial apprehension which would justify a man of reasonable caution in the belief that a crime had been committed and that the individual arrested was the probable perpetrator.' Commonwealth v. Jones, 322 A.2d at 123 (citations omitted)." Commonwealth v. Jackson, 459 Pa. 669, 673-674, 331 A.2d 189, ...