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COMMONWEALTH v. MAYER (04/22/76)

decided: April 22, 1976.

COMMONWEALTH, APPELLANT,
v.
MAYER



Appeal from order of Court of Common Pleas of Lycoming County, No. 74-10, 870, in case of Commonwealth of Pennsylvania v. Harold Steven Mayer.

COUNSEL

Gregory V. Smith, Assistant District Attorney, with him Allen E. Ertel, District Attorney, for Commonwealth, appellant.

Kenneth D. Brown, Assistant Public Defender, and Peter T. Campana, Public Defender, submitted a brief for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Jacobs and Hoffman, JJ., concur in the result. Concurring Opinion by Spaeth, J.

Author: Van Der Voort

[ 240 Pa. Super. Page 183]

On May 27, 1974, several persons broke into a mobile trailer home being stored on a lot in Montoursville, and removed various items from the trailer. The crime was spotted by a private citizen, Walter Wert, who notified the police. A call went out over the Pennsylvania State Police radio alerting police in the area to stop a green van with a specified license number in connection with a theft from mobile homes. This bulletin was relayed by the Williamsport police radio to local police forces in the vicinity. About fifteen minutes after receiving the bulletin, Officer Floyd Reed and his partner (Williamsport officers) stopped the van in nearby Williamsport. The Montoursville Police Chief, Harold Gottschall, was then notified, and he and another officer arrived in Williamsport a short time later, arrested appellant and another occupant of the van and took them to City Hall. There the van was searched pursuant to a lawful search warrant, and property stolen from the house trailer was discovered. Appellant was charged with the theft of items of the approximate value of two hundred twenty-nine ($229.00) dollars. On December 5, 1974, appellant filed a motion to suppress evidence obtained in connection with his arrest, which motion was granted by the lower court on January 16, 1975. The Commonwealth appealed the grant of this suppression motion,*fn1 arguing that the lower court erred in finding

[ 240 Pa. Super. Page 184]

    that the arrest was for a misdemeanor not committed in the presence of the arresting officer. We find that the arrest was made by the police with probable cause to believe that a felony had just been committed and that appellant was one of the perpetrators of the felony.

In deciding whether the police had probable cause to make the arrest, it is first necessary to determine whether or not a finished but uninhabited house trailer is a "building or occupied structure" within the meaning of § 3502 of the Crimes Code,*fn2 since only buildings and occupied structures can be the subject of the felonies of burglary or criminal trespass. The mobile trailer home in question was a forty or fifty foot house trailer. It was adapted for overnight accomodation of persons*fn3 and was

[ 240 Pa. Super. Page 185]

    being stored on a lot with similar trailers. Appellee would have us find that the trailer could not have been the subject of a burglary or criminal trespass since it was not currently being used for human habitation. We disagree. In Commonwealth v. McCoy, 209 Pa. Superior Ct. 399, 401, 228 A.2d 43 (1967), our Court held that an outdoor telephone booth was a "building" within the meaning of the Act of June 24, 1939, P.L. 872, § 901, 18 P.S. § 4901. We recognized in McCoy that the historical development of the crime of burglary reflected a concern for the protection of property within a structure, with a consequent expansion in the types of structures which would qualify as subjects of that crime. We do not believe that the enactment of the new Crimes Code reflects a lessening in the legislative concern for property. The legislature undoubtedly intended a house trailer, even though uninhabited, to be a "building or occupied structure" within the meaning of § 3502 and § 3503. Having so determined, we now turn to the question of whether the police had probable cause to believe that appellant was the perpetrator of a felony.

On May 27, 1974, Walter Wert, a private citizen, saw some people in the process of removing items from some mobile trailer homes and putting them into a green vantype automobile. He got the license number of the van and reported the information which he had to the State Police who in turn issued a radio bulletin alerting other police to stop a green van with a specified license number "in regards to a theft or a burglary or something in Montoursville area of some trailers." The State Police bulletin was broadcast by local police units. Officer Reed and a fellow officer of nearby Williamsport police spotted the van in question within ...


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