Appeal from the Order dated December 10, 1974, from the Court of Common Pleas, Trial Division, Criminal Section for the County of Philadelphia at Misc. No. 74-00-5561. No. 512 October Term, 1975.
John W. Packel, Asst. Public Defender, Chief, Appeals Div., Philadelphia, for appellant.
Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs and Van der Voort, JJ., dissent.
[ 241 Pa. Super. Page 231]
On July 19, 1974, at approximately 10:40 p. m., two Philadelphia Police Officers observed appellant, Oscar Purnell, and three companions enter a Gino's fast food chain restaurant located at Lancaster and Girard Avenues in Philadelphia. The officers testified that, prior to entering, the four men "looked around and up and down Lancaster Avenue."
After the four entered the restaurant, they spread out along the front window, facing the cashiers. Appellant and one of his companions placed their hands in their jacket pockets. The four men remained inside the restaurant for approximately two minutes, and then left without making any purchases. This is a total summary of the testimony of the police officers as to their observations.
[ 241 Pa. Super. Page 232]
The officers agreed that they had observed no criminal activity.
Appellant and the others were stopped by the police officers as they were walking away from the restaurant. The four men told the officers that they were going to a party. The officers patted down the men and found a loaded .38 caliber revolver on appellant. Appellant did not have a permit for the revolver, and was arrested for violation of the Pennsylvania Uniform Firearms Act.*fn1
Appellant filed a motion to suppress the evidence, which motion was denied on September 27, 1974. The municipal court based its ruling upon the following summation by Judge Margiotti:
"I believe that a hold-up was on its way and the officer acted properly. It is a high crime area, it's late at night and four men go into a restaurant, standing at the window and place their hand in their pockets, do nothing and walk out. The officer did have a right to make the inquiry. Your motion to suppress is denied." (Suppression Hearing p. 11)
On October 8, 1974, appellant was found guilty, in municipal court, of carrying a firearm without a license*fn2 and carrying a firearm on public streets or public property in Philadelphia,*fn3 and sentenced to two concurrent sentences of three years probation. A Petition for Writ of Certiorari to the court of common pleas solely on the issue of the denial of the suppression motion was denied on December ...