Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1972, No. 530, in case of Commonwealth of Pennsylvania v. David Cruse.
George E. Goldstein, and Goldstein and Rosenblum, for appellant.
Neil Kitrosser, 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 Cercone, J. Dissenting Opinion by Jacobs, J. Watkins, P.j., and Van der Voort, J., join in this dissenting opinion.
[ 236 Pa. Super. Page 86]
This is a direct appeal from appellant's conviction, in a non-jury trial, of unlawfully carrying a firearm without a license.
The facts which gave rise to appellant's arrest can be briefly stated as follows. On January 27, 1972, at approximately 10:30 P.M. Sgt. Bayer, of the Philadelphia Police Department, received a radio call directing him to proceed to 35th and Powelton Avenue where he would find
[ 236 Pa. Super. Page 87]
a white Dodge bearing license number 39210Z which would be occupied by two Negro males and a Puerto Rican female. The radio message indicated that the occupants of the car were armed and were in the area to purchase a large quantity of narcotics. Sgt. Bayer requested that another car and a wagon meet him approximately 50 yards from the location of the white Dodge. The police vehicles met and four officers then approached the white Dodge with their weapons drawn. Upon arriving at the car the officers ordered the occupants out. The appellant, who was sitting in the right front seat, reached down between his legs toward the floor and was then pulled from the car. Upon searching the car, the police officers found a revolver underneath the front seat, where appellant had been sitting.
Appellant contends that the arrest and subsequent search of the vehicle was improper in that it was based upon an unsupported allegation of illegal conduct made by an anonymous informer. Implicit in appellant's contention are two facts which are questioned by the Commonwealth. First, the Commonwealth refers to the incident as a protective search which resulted in an arrest rather than an arrest and subsequent search. Although this appears to be primarily a question of semantics it is important in that if the incident is viewed as an arrest and subsequent search the standards used to determine whether the officers' actions were proper would be the standards governing warrantless arrests, while if the incident is viewed as a protective search and arrest the standards used would be those governing stop-and-frisk cases.
Second, the Commonwealth disputes appellant's contention that the officers' action was based upon an unsupported allegation made by an anonymous informer. The Commonwealth contends that the radio message was a sufficient basis for the officers' conduct. While this might in some cases be true, it assumes that the radio message
[ 236 Pa. Super. Page 88]
itself had a proper basis. The United States Supreme Court addressing this problem in Whiteley v. Warden, 401 U.S. 560, 568 (1971) stated: "We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. . . . Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating ...