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COMMONWEALTH PENNSYLVANIA v. JOSEPH DEVER (09/27/76)

decided: September 27, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH DEVER, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County at No. 2940 July Term, 1974., Criminal Section. No. 1524 October Term, 1975.

COUNSEL

Calvin S. Drayer, Jr., Asst. Public Defender, Norristown, for appellant.

Milton O. Moss, Dist. Atty., William T. Nicholas, 1st Asst. Dist. Atty., Stewart J. Greenleaf, Asst. Dist. Atty., Chief, Appeals Div., Norristown, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a concurring and dissenting opinion in which Cercone and Spaeth, JJ., join.

Author: Jacobs

[ 243 Pa. Super. Page 90]

This is an appeal from the conviction of Joseph Dever, appellant, for violating the Uniform Firearms Act. Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 6106 (1973). Several arguments are made in appellant's submitted brief, no oral argument having been

[ 243 Pa. Super. Page 91]

    made, which are without merit.*fn1 Appellant's claim of ineffective assistance of counsel, however, requires that the case be remanded for an evidentiary hearing.

On July 14, 1974, appellant and another person knocked on the door of a motel room that was at the time being searched by the police for narcotics. One of the officers, all of whom were in plain clothes, opened the door and stated "Police, come in." The officer further testified that appellant then "picked up his arms and shoved me slightly. And then he took several steps backwards. And it appeared to me as if he were trying to run or prepare to run to get away or flee." The officer pursued appellant and while appellant was being brought under control, a pistol dropped to the floor.

Appellant's trial for violation of the Uniform Firearms Act was scheduled for January 22, 1975. On January 6, 1975, however, the Commonwealth filed an application for an extension for the commencement of trial under Pa.R.Crim.P. 1100(c). A hearing on the application was to be held on January 31, 1975. On January 13, 1975, appellant moved to suppress the pistol but the motion was dismissed as being untimely filed. When appellant's case was called for trial on January 27, 1975, appellant's counsel agreed to waive all objections to the Commonwealth's application to extend for the Commonwealth's agreement to overlook the timeliness objection to appellant's motion to suppress. A suppression hearing was then held but again appellant's motion was denied. Trial commenced the next day and appellant was found guilty as charged by a jury. After post-verdict motions were filed and denied and sentence was imposed, this appeal was taken.

The first issue raised is whether the evidence was sufficient to support the verdict. At trial, each officer

[ 243 Pa. Super. Page 92]

    who was at the scene testified that the pistol was not his and one officer testified that he saw the pistol fall from the waist area of appellant. Viewing this evidence in the light most favorable to the Commonwealth, the verdict winner, we are convinced that the evidence was sufficient to support the verdict. See Commonwealth v. DiSilvio, 232 Pa. Super. 386, 335 A.2d 785 (1975).

Appellant next contends that Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975) required the Commonwealth as part of its burden of proof to establish that appellant did not have a license for the pistol. Commonwealth v. McNeil, supra, which was filed on May 13, 1975, is not applicable, however, to the present case which was tried several months earlier. Commonwealth v. Williams, 237 Pa. Super. 91, 346 A.2d 308 (1975).

The third argument raised in appellant's brief is that the seizure of the pistol by the police was improper. Although the police in this case did not have probable cause to arrest appellant, it would have been absurd for them to fail to respond to appellant's actions of shoving the officer and then trying to flee. "The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry [ v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)] recognizes that it may be the essence of good police work to adopt an intermediate response." Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). Here, appellant arrived at the scene of a suspected drug operation. After the police identified themselves appellant shoved ...


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