Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1974, Nos. 789 and 790, in case of Commonwealth of Pennsylvania v. Payton Robinson.
Joseph A. McNeal, for appellant.
Stephen Levin, 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 Watkins, P.j. Concurring Opinion by Price, J. Van der Voort, J., joins in this concurring opinion. Dissenting Opinion by Hoffman, J. Cercone and Spaeth, JJ., join in this dissenting opinion.
[ 238 Pa. Super. Page 509]
This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, by the defendant-appellant, Payton Robinson, after conviction in a jury trial of possession of a prohibited offensive weapon and from the denial of post trial motions.
Appellant was charged with weapons offenses and several other charges on January 21, 1974. He had been observed by two Philadelphia policemen on January 20, 1974. The defendant was walking along a street carrying a brown paper bag. As the officers approached the defendant, he began to run. As they pulled alongside him in their patrol car he slowed down to a trot. At this time the police noticed that the defendant now had the bag wrapped tightly around the object inside the bag in such
[ 238 Pa. Super. Page 510]
a manner that they could clearly see the shape of a handgun. The defendant was stopped and the officers' investigation confirmed that he had a loaded pistol in the bag. The defendant was arrested. A more extensive investigation revealed that the pistol carried by the defendant had been used in an armed robbery on January 5, 1974.
The defendant was subsequently tried on charges of armed robbery and the weapons offenses on October 29 and October 30, 1974. He was convicted only of the weapons offenses. On December 5, 1974 defendant's post trial motions were denied and he was sentenced to 2 1/2 to five years imprisonment.
The defendant raises four issues on appeal. First he claims that the evidence relating to the pistol should have been suppressed because the arresting officer had no probable cause to arrest the defendant. However, the officer's testimony established that a clear outline of the gun could be seen by him. The officer saw the defendant running down a street late at night with a gun concealed in a bag. Under the circumstances there was sufficient cause for the officer to stop and question the defendant and to search him for his own protection. Terry v. Ohio, 392 U.S. 1, 20 L. Ed.2d 889 (1968). The issue of whether the officer could see the outline of a gun through the bag was one of credibility which the court determined in the policeman's favor. Therefore, this issue does not warrant a reversal.
Appellant also claims the court below erred when it sustained the Commonwealth's objection to a question directed to the arresting officer by the appellant. The appellant attempted to ask the officer whether he had received notice of a felony having been committed in the area prior to the arrest of the appellant. The court sustained the prosecutor's objection to the question. The purpose of the question was to attempt to determine whether probable cause existed for the stopping and frisking of the defendant. However, since the officer had
[ 238 Pa. Super. Page 511]
probable cause to question the defendant independently of whether the officer had knowledge of any felony in the area, the sustaining of the objection was at most harmless error and would not be grounds for reversal of the conviction.
Appellant's next allegation of error is that the suppression judge committed reversible error when he failed to submit a statement of findings of fact and conclusions of law after the suppression hearing in violation of Rule 323(i) of the Pennsylvania Rules of Criminal Procedure. However, the defendant did not raise the issue in his post trial motion and therefore it is waived. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).
The appellant's final contention is that the court below erred in not granting his petition to dismiss the charges pursuant to Rule 1100 of the Pa. R. Crim. P. since the appellant was arrested on January 20, 1974, the criminal complaint against him was filed on January 21, 1974 and his trial begun on October 29, 1974. The 270-day period, then in effect, in which to bring the case to trial expired on October 18, 1974. Therefore, the appellant's trial was begun 11 days after the 270-day period had expired. However, the appellant himself filed a motion for dismissal pursuant to Rule 1100 on October 16, 1974 which was 2 days before the 270-day period expired. At this time appellant's attorney expressed his desire to stay all proceedings until his petition had been disposed of. Had a hearing on the petition been held on the date it was filed, i.e., October 16, 1974, it obviously would have been denied for the 270-day period had not yet expired. It would be improper to permit defendant to file a petition to dismiss pursuant to Rule 1100 on the 268th or 269th day of the 270-day ...