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COMMONWEALTH v. PINNEY (09/22/75)

decided: September 22, 1975.

COMMONWEALTH
v.
PINNEY, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, April T., 1972, No. 3766, in case of Commonwealth of Pennsylvania v. Alfred Bruce Pinney.

COUNSEL

H. David Rothman, for appellant.

Charles W. Johns and Robert L. Eberhardt, Assistant District Attorneys, John M. Tighe, First Assistant District Attorney, and John J. Hickton, 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, Cercone, and Spaeth, JJ., concur in the result. Dissenting Opinion by Hoffman, J.

Author: Van Der Voort

[ 236 Pa. Super. Page 311]

On December 9, 1971, a Pennsylvania State Policeman was murdered and two Altoona police officers were wounded. On the morning of the following day, a bus driver phoned the Pennsylvania State Police with the information that three men who matched the description of the murderers were riding his bus bound for Monroeville from Indiana, Pennsylvania. Three police officers in plain clothes boarded the bus in Monroeville and spotted appellant and two other men sitting toward the rear of the bus. The officers had descriptions of two of the men. Observing that appellant and one of the other two matched the descriptions of the men wanted for the shootings, the police officers got behind the suspects, identified themselves as police officers, and conducted a search for weapons. A pat-down of appellant disclosed a packet which contained 21.0 grams of marijuana and 571 diamphetamine tablets. None of the three men on the bus was involved in the crimes committed in Altoona. Appellant was tried on December 14, 1972, by a judge sitting without a jury, was found guilty of possession of narcotic and dangerous drugs, and was sentenced to one year on probation and to pay costs.

Appellant raises but one argument in his appeal: that the search of appellant's person without a search

[ 236 Pa. Super. Page 312]

    or arrest warrant violated his constitutional right to be free from unreasonable search and seizure, and that the trial judge was therefore in error in denying the application to suppress the drugs found in appellant's jacket pocket. When a person is lawfully arrested, the police have the right, without first obtaining a search warrant, to make a contemporaneous search of the person of the accused for weapons, for the fruits of the crime, or for implements used to commit the crime. This rule is necessary for the protection of the arresting officers, and also to prevent the destruction of evidence. Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed.2d 685 (1969); Preston v. United States, 376 U.S. 364, 367, 84 S. Ct. 881, 11 L. Ed.2d 777 (1964). Whether or not an arrest is constitutionally valid depends in turn upon whether, at the moment the arrest is made, the police officers have probable cause to make it -- whether at the time of the arrest the facts and circumstances within the knowledge of the arresting officers and of which they have reasonably trustworthy information are sufficient to warrant a man of reasonable caution in believing that the suspect has committed or is committing a crime. Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 13 L. Ed.2d 142 (1964); Commonwealth v. Murray, 437 Pa. 326, 329, 263 A.2d 886 (1970); Commonwealth v. Brayboy, 431 Pa. 365, 369, 246 A.2d 675 (1968). The basic determination then that we must make in the case before us is whether the police had probable cause to arrest appellant in connection with the murder of the State Police Officer and the wounding of the two Altoona policemen. We turn to the United States Supreme Court case of Hill v. California, 401 U.S. 797, 91 S. Ct. 1106, 28 L. Ed.2d 484 (1971) for guidance. In Hill, accomplices to a robbery implicated the petitioner, Archie Hill, and gave the latter's address, along with his description, to the police. At the address given them (which was in fact the address of the suspect Hill), the police arrested a man named

[ 236 Pa. Super. Page 313]

Miller who was alone there who matched the description of Archie Hill. The Supreme Court said that it would not disturb the finding of the California Supreme Court that "[w]hen the police have probable cause to arrest one party, and when they reasonably mistake a second party for the first party, then the arrest of the second party is a valid arrest." 401 U.S. at 802. The Court went on to say: "In these circumstances the police were entitled to do what the law would have allowed them to do if Miller had in fact been Hill, that is, to search incident to arrest and to seize evidence of the crime the police had probable cause to believe Hill had committed." 401 U.S. at 804.

In the case before us one of the arresting officers was asked at trial whether on boarding the bus he made any attempt to observe if the three men fit the description of the men who had shot the police officers, and the officer replied "Yes, and they certainly did in my opinion." The officer testified that appellant was the first person he observed upon boarding the bus, and that appellant matched the description of one of the murderers: white male, age 18 to 20, five feet ten inches tall, thin build, long blond hair. The defendant took the stand and testified that he was 19 years old at the time of the arrest, five feet seven inches tall, and had always had brown hair. (One police officer observed from the stand that appellant's hair was light brown -- "Some people would call it blond . . . the front wave it could be called blond." ) Considering the circumstances -- the reasonable belief that appellant was one of the men wanted for the shootings, and the necessity of exercising the utmost caution in apprehending the three men -- ...


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