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COMMONWEALTH v. HUNTER (04/22/76)

decided: April 22, 1976.

COMMONWEALTH
v.
HUNTER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1974, Nos. 172 and 173, in case of Commonwealth of Pennsylvania v. Willie Hunter.

COUNSEL

Donald M. Moser, with him Peruto, Ryan & Vitullo, for appellant.

Francis C. Barbieri, Jr., Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, submitted a brief for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J.

Author: Price

[ 240 Pa. Super. Page 26]

At approximately eight p.m. on January 4, 1974, two men robbed the 833 Bar on the corner of Fourth and Diamond Streets in Philadelphia. Willie Daniels, the bartender, was alone in the establishment when the men entered. One of the robbers displayed a gun, and Daniels was quickly ordered to turn around, proceed into the kitchen and face the wall. Daniels, who had been watching television when the men entered, had little opportunity to observe either of them. He was able to state only that both men were black, both had relatively short hair, and the man who pulled the gun wore an expensive-looking, three-quarter length, brown, "tweedy-looking" coat.

After the robbers fled, Daniels found that the cash register had been emptied of its contents, which included three ten dollar bills, one five dollar bill and thirteen one dollar bills, totaling forty-eight dollars. Also missing were two one dollar bills that had been displayed along with the establishment's liquor license. Each of these bills had a name written on it, "Florence" on one and "Big John" on the other.

On the same evening, at approximately eight-thirty p.m., Officers Zimmerman and Theurer of the Philadelphia Police Department were on patrol in their marked police van. At the corner of Susquehanna Avenue and Orianna Street, approximately a block and a half from the 833 Bar, they observed a pale green Plymouth Cricket going through a stop sign. The officers pursued the vehicle and attempted to stop it by flashing their spotlight, putting on their overhead lights and using their siren. The driver of the fleeing vehicle ignored these warnings and continued north on Orianna, driving erratically. At the corner of Orianna and York Streets, the vehicle slowed, the driver's door opened, the driver's seat was pushed forward and a man, later identified as the appellant, leaped from the car. Officer Theurer left the police van and chased the fleeing

[ 240 Pa. Super. Page 27]

    individual on foot. Officer Zimmerman continued to pursue the green Plymouth which, after narrowly avoiding two accidents, was finally stopped by a blockade of other police vehicles. The Plymouth was driven by appellant's co-defendant Holmes and the rear seat was occupied by co-defendant Carter. When the driver was unable to produce a license or car registration, he and the passenger were patted down and taken to East Detective Division for investigation as suspects in a possible car theft.

Meanwhile, Officer Theurer pursued the appellant for approximately twelve to fourteen blocks before finally apprehending him. During this chase, the officer observed that appellant was wearing a three-quarter length tan and brown coat and that appellant was attempting to dislodge something from the right pocket of the coat. After appellant was apprehended, the officer patted him down. No weapon was found, but appellant's right pocket contained a wad of bills. Appellant was taken into custody as a possible accomplice in car theft.

While the police were bringing the former occupants of the fleeing vehicle into the station, they received a radio call concerning the robbery at the 833 Bar. After hearing a description of the first suspect, Officer Theurer interrupted the call, stating that he believed they had the males that committed the robbery. At the Detective Headquarters a routine search of the defendants revealed that the appellant possessed a wad of currency in the exact amount and denominations taken in the bar robbery and that his co-defendant, Carter, possessed the two marked one dollar bills.

Appellant's first argument is that his arrest and subsequent search were illegal. We initially note that the instant case is clearly distinguishable from Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973). Swanger condemned random "routine" car stops in the absence of any evidence of a Vehicle ...


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