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COMMONWEALTH v. ROSCIOLI (04/22/76)

decided: April 22, 1976.

COMMONWEALTH
v.
ROSCIOLI, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1974, Nos. 1098 and 1099, in case of Commonwealth of Pennsylvania v. Charles Roscioli.

COUNSEL

Stephen Robert LaCheen, with him Daniel-Paul Alva, for appellant.

Hugh J. Colihan, Assistant District Attorney, with him 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 Spaeth, J. Watkins, P.j., and Hoffman, J., concur in the result.

Author: Spaeth

[ 240 Pa. Super. Page 136]

Following a non-jury trial, appellant was convicted of burglary, theft, and conspiracy.*fn1 His sole contention on appeal is that his arrest was made without probable cause and consequently his pre-trial motion to suppress was improperly denied.*fn2 Although the case is close, we affirm the judgment of sentence.

At 3:00 a.m. on February 26, 1974, Officer John Flynn of the Philadelphia police was on patrol by himself in a patrol car. As he approached the intersection of State Road and Wyoming Avenue, he saw two white males "duck" between a parked truck and car.*fn3 As appellant ducked, the officer saw him place something on the ground. As the officer got out of the patrol car, he quickly recognized appellant, realized that appellant did not live in that neighborhood, and immediately called for a back-up police car.*fn4

[ 240 Pa. Super. Page 137]

As Officer Flynn called for the back-up car, he received a radio report of a burglary in progress at 413 East Wyoming Avenue; this location was approximately a forty seconds' walk from where the officer had encountered appellant. The officer thereupon asked appellant what he was doing. Appellant responded that he had dropped his keys in the snow on the street, and asked to borrow the officer's flashlight. At this point, the back-up, a police wagon, arrived. Appellant and his companion were immediately handcuffed and placed in the wagon, since it was thought that they were suspects in the burglary that had just taken place. The article that appellant had placed on the ground was retrieved and found to be a cigar box containing $180. The cigar box was subsequently identified by the owner of the bar that had been burglarized.

Unquestionably, when the officers handcuffed appellant, he was under arrest. Commonwealth v. Kloch, 230 Pa. Superior Ct. 563, 573, 327 A.2d 375, 381 (1974). Since the arrest was warrantless, its legality depends upon whether probable cause to arrest was present. Commonwealth v. Bishop, 425 Pa. 175, 228 A.2d 661 (1967). As the Supreme Court has recently stated, probable cause exists

"if the facts and circumstances which are within the knowledge of the officer at the time of arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime."

Commonwealth v. Culmer, 463 Pa. 189, 195, 344 A.2d 487, 490 (1975). The burden ...


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