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COMMONWEALTH v. FERRARO (12/01/75)

decided: December 1, 1975.

COMMONWEALTH
v.
FERRARO, APPELLANT



Appeal from judgments of sentence of Court of Common Pleas of Bucks County, Nos. 1924 and 1924-1 of 1971, in case of Commonwealth of Pennsylvania v. Richard Ferraro.

COUNSEL

Clarence D. Bell, Jr., for appellant.

Jeffrey P. Garton, Assistant District Attorney, Stephen B. Harris, First Assistant District Attorney, and Kenneth G. Biehn, 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 Hoffman, J.

Author: Cercone

[ 237 Pa. Super. Page 271]

Appellant, Richard Ferraro, was arrested on August 19, 1971, and charged with larceny of an automobile and possession of burglary tools. Following the denial of his pre-trial motion to suppress evidence, appellant was found guilty in a non-jury trial of both charges. Post-trial motions were denied and appellant was sentenced to serve a three-to-six month term of imprisonment. This appeal followed.

The sole issue properly preserved for our review*fn1 raises the legality of appellant's arrest. Appellant argues that his arrest was illegal and that the physical evidence seized incident to that arrest should have been suppressed. We disagree.

The relevant facts are as follows: On August 19, 1971, at approximately 1:15 a.m., a 1971 yellow and gold Cadillac automobile was stolen from an apartment complex located in Bensalem Township, Bucks County. The owner of the vehicle, alerted by the sound of the engine being started up, observed her car being driven away and immediately telephoned the Bensalem Township Police. Moments later, a Bensalem Township police officer, William Thompson, received a radio bulletin that the Cadillac had been stolen from an address located less than one mile from his present position. Due to road construction, Officer Thompson had to proceed east on Grant Avenue in Philadelphia in order to reach the Bensalem Township address. While driving east on Grant Avenue, Officer Thompson observed the described Cadillac in the west bound lane. Officer Thompson then made a U-turn to investigate further. This investigation was

[ 237 Pa. Super. Page 272]

    hampered, however, by a 1971 Lincoln Continental automobile, operated by appellant, which was "tailgating" the Cadillac. The proximity of the Lincoln to the Cadillac ("maybe a half a car length") made it impossible for Officer Thompson to check the registration number of the Cadillac. When the Cadillac stopped for the traffic light at the Frankford Avenue intersection, Officer Thompson pulled alongside. He noticed that the lock cylinder on the driver's door of the Cadillac had been removed. The operator of the Cadillac, Thomas DiCicco, Jr., was placed under arrest.

In the meantime, a Philadelphia policeman, Officer Hughes, had observed Officer Thompson travelling east on Grant Avenue. Following Thompson, Hughes also made the U-turn and pulled alongside the Lincoln which was stopped behind the Cadillac at the traffic light. Officer Thompson alerted Officer Hughes that the Cadillac had been stolen and requested him to "cover" the Lincoln while he was securing the driver of the Cadillac. At the direction of Officer Hughes, who had drawn his service revolver, appellant turned off the ignition and alighted from the Lincoln. As appellant stepped out of the Lincoln, Officer Hughes observed in plain view on the front seat, a vise grip wrench and an open tote bag from which were dangling a "bunch" of car key blanks. Further examination of the tote bag revealed that it contained additional car key blanks, a pair of cutting pliers, a key-making device, a tool fitting the rear of an ignition lock, and a flashlight. A body search incident to appellant's arrest disclosed two automobile lock cylinders.

The Commonwealth, although conceding that probable cause did not exist for appellant's arrest at the time he was ordered to exit from the Lincoln, contends that the subsequent events, in plain view of Officers Thompson and Hughes, established probable cause ...


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