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COMMONWEALTH PENNSYLVANIA v. ALLEN WHITNER. COMMONWEALTH PENNSYLVANIA (06/28/76)

decided: June 28, 1976.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ALLEN WHITNER. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. HERBERT JONES



Appeal from Order dated January 6, 1975 of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County at Nos. 1339/1341 and Nos. 1345/1348, 1350 of January Term, 1974. Nos. 741 and 742 October Term, 1975.

COUNSEL

Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., M. Stotland, Philadelphia, for appellant.

Henry J. Lunardi, Philadelphia, for appellee in No. 741.

Lee Mandell, Philadelphia, for appellee in No. 742.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result in No. 741, and dissents in No. 742.

Author: Cercone

[ 241 Pa. Super. Page 318]

In the instant case the Commonwealth appeals from the lower court's order granting appellees a new trial and suppressing evidence which was the fruit of allegedly illegal arrests, searches and seizures.*fn1 Appellees had been convicted, after a non-jury trial, of burglary,*fn2 robbery,*fn3 and conspiracy.*fn4 In addition, appellee-Jones was

[ 241 Pa. Super. Page 319]

    convicted of various weapons offenses.*fn5 Because we find that appellees were legally arrested upon probable cause and that the physical evidence was properly seized, we will reverse the order of the court which heard the post-verdict motions and remand for sentencing.

On the night of January 3, 1974, at approximately 10:45 P.M., Officers Cochrane and Floirendo of the Philadelphia Police Department were cruising the high-crime neighborhood in the vicinity of 15th and Diamond Streets, wearing plainclothes and driving an unmarked car. The night was cold and very few people had braved the chill air, most having chosen to remain in the relative comfort of their homes. Two of the venturesome few were appellees Jones and Whitner, when Officers Cochrane and Floirendo first observed Jones and Whitner, appellees were nearing the corner of 15th and Diamond walking east. Jones was carrying a supermarketsized shopping bag in both arms, and Whitner had a suitcase. The policemen stopped for the red light at 15th and Diamond and Jones and Whitner crossed Diamond Street behind the car, an act which the officers determined to be furtive under the circumstances. The policemen felt that appellees' conduct warranted further observation; so, when the light turned green, Officers Cochrane and Floirendo proceeded down Diamond Street only one-half block where they turned into a sidestreet and got out of their patrol car. When the officers emerged from the sidestreet and Jones saw them, he threw the shopping bag onto the sidewalk and ran away. Officer Cochrane saw that shirts in cellophane wrappers spilled from the bag, so he gave chase. He caught Jones several blocks away.

In the meantime, Whitner had also begun to run away, but when Officer Floirendo told him to halt, Whitner obeyed. Floirendo then had Whitner "spread-eagle" on a wall and began a patdown. When he reached appellee's

[ 241 Pa. Super. Page 320]

    pocket, and felt a suspicious lump, Whitner muttered an expletive and removed his hands from the wall. Floirendo stepped back and reached for his nightstick. At the same time Whitner grabbed the suitcase, slammed it into Floirendo's chest and ran away. Fortunately, other patrol cars which had been summoned began to arrive on the scene and other policemen aided Floirendo in capturing and subduing Whitner. After Floirendo retrieved the suitcase some silver coins spilled out. Opening the ...


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