decided: June 28, 1976.
COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
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.
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.
[ 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 suitcase Floirendo found jars of coins and jewelry. The wad in Whitner's pocket proved to be a roll of money totaling one hundred dollars.
While all this was taking place, the residents of a second floor apartment at 1405 Diamond Street untied themselves and called the police to report that they had just been robbed. They subsequently identified the property recovered from Jones and Whitner as theirs, and identified appellees as the robbers.
Although the suppression hearing judge ruled all the physical evidence to be admissible, the judge on post-verdict motions reversed that ruling and granted appellees a new trial.*fn6 The Commonwealth then brought this appeal.*fn7
The pivotal issue in this case is whether Officers Cochrane and Floirendo had a sufficient factual basis to take the action that they did which led to the arrest of appellees and the search and seizure of the suitcase and shopping bag.
Appellee Jones argues that his arrest was illegal because this case is indistinguishable from Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973).
[ 241 Pa. Super. Page 321]
We disagree. It is certainly true that "flight, in and of itself, is not sufficient to constitute probable cause for otherwise anyone, who does not desire to talk to the police and who either walks or runs away would always be subject to a legal arrest." Commonwealth v. Pegram, 450 Pa. 590, 301 A.2d 695 (1973). However, flight coupled with some other fact, such as the sight of contraband, may establish probable cause to arrest. Commonwealth v. Jeffries, 454 Pa. at 324, 311 A.2d 914. In the instant case, on seeing the police approaching, appellee Jones abandoned the ostensibly valuable bag full of shirts and fled. Taking these two facts along with lateness of the hour and the nature of the neighborhood, Officer Cochrane had probable cause to believe that the shirts were stolen, and that Jones knew they were stolen. On these facts Officer Cochrane had probable cause to believe that Jones had committed the crime of receiving stolen goods in his presence and, therefore, properly pursued and arrested him. To hold otherwise requires engaging in the kind of quibbling over legalistic nuances which often burdens and stymies the police.*fn8 As Judge Hoffman stated in speaking for the majority in Commonwealth v. Ellis, 233 Pa. Super. 169, 174, 335 A.2d 512, 515 (1975):
"We do not suggest that the Fourth Amendment lies dormant during the night hours. We do recognize, however, that some activities that are commonplace during daytime, business hours give rise to suspicion during other times of the day."
The police conduct prior to Jones' abandoning the shirts is different from that which occurred in Jeffries, also. In Jeffries, the cigarette package containing the contraband was abandoned because of the illegal conduct of the police; and, hence, it was the "fruit of
[ 241 Pa. Super. Page 322]
the poisonous tree" under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In the case at bar, Jones abandoned the stolen shirts before the police had spoken to him or chased him; so that, prior to the abandonment, there was no conduct by the police which was even arguably illegal. With respect to this issue the instant case is indistinguishable from United States v. Martin, 386 F.2d 213 (3d Cir. 1967).*fn9 Therefore, the court on post-verdict motions erred when it ruled that the shopping bag, and the testimony concerning it, could not be admitted into evidence.
In Whitner's case the analysis differs, but the facts still justify his arrest, and the search and seizure of the suitcase. Even if we assume for the sake of argument that the fact that Whitner was the companion of Jones, and that Whitner also demonstrated an inclination to flee, did not give rise to a reasonable belief that Whitner was involved in criminal activity under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), Whitner was nevertheless properly arrested.
While it is true that evidence found subsequent to an illegal arrest cannot be used to purge the arrest of its illegality,*fn10 conduct which occurs after the arrest and amounts to a crime in and of itself may establish an independent basis for retaining a suspect in custody. In the instant case, regardless of whether Officer Floirendo was justified in stopping Whitner and searching him for weapons, Whitner committed a crime when he struck the officer with the suitcase. Section 505 of the
[ 241 Pa. Super. Page 323]
Crimes Code,*fn11 in force at the time of Whitner's arrest, provides:
"(b) Limitations on justifying necessity for use of force. --
(1) The use of force is not justifiable under this section:
(i) to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful;
Indisputably, Whitner committed an assault on Officer Floirendo when he struck him with the suitcase;*fn12 and, ordinarily self-defense would be his only justification.*fn13 However, Section 505 of the Crimes Code specifically precludes this defense on these facts. Hence, Officer Floirendo had probable cause to arrest Whitner for a misdemeanor committed in his presence (an assault) and seize the suitcase. When he seized the suitcase and saw the coins falling from it, coupled with the facts already within his knowledge, he was entitled to open it and examine its contents. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). See also United States v. Bradley, 455 F.2d 1181 (1st Cir. 1972). Finding the coins and jewelry, he could then search appellant for other fruits of the crime (receiving stolen goods, at least) and seize the $100 in cash.
[ 241 Pa. Super. Page 324]
United States v. Robinson, supra. Thus, the suppression court properly found that all the evidence acquired as the result of the arrest of Whitner could be introduced into evidence; and, at the hearing on appellee's post-verdict motions, the lower court erred in granting appellee's motion for a new trial.
For the foregoing reasons, the order of the lower court granting appellee's motions for a new trial is reversed; the verdicts of guilty are reinstated; and, the case is remanded for sentencing.