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COMMONWEALTH PENNSYLVANIA v. JOSEPH MOORE (02/18/77)

decided: February 18, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH MOORE, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, No. 2215 April Term, 1974. No. 438 October Term, 1976.

COUNSEL

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

Bert M. Goodman, Assistant District Attorney, Lansdale, and William T. Nicholas, District Attorney, Norristown, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., concurs in the result. Watkins, President Judge, and Van der Voort, J., dissent.

Author: Hoffman

[ 246 Pa. Super. Page 164]

Appellant was convicted by a jury of simple assault,*fn1 false imprisonment,*fn2 and criminal conspiracy to kidnap.*fn3 In this appeal, he contends that the lower court erred in denying his motion to suppress his prior

[ 246 Pa. Super. Page 165]

    convictions.*fn4 We agree and, therefore, reverse the judgment of sentence and remand for a new trial.

On Friday, May 24, 1974, at approximately 10 p. m., two teenagers, Barbar Guinn and Alba Fellows were walking home from a drive-in movie in Montgomery County. As they proceeded on the Sumneytown Pike towards Route 309, a white station wagon passed them and sounded its horn. A few minutes later, the girls saw the same station wagon parked on the shoulder of the road. Two men then jumped out of the bushes, grabbed the girls, and forced them into the bushes. The men ordered the girls to be quiet or else they would cut their throats. One of the men asked Miss Guinn whether she had "pot" or money. She replied in the negative. The two men took a blazer and a sweater from the girls which they placed over the girls' heads as blindfolds. They dragged the girls across the street and pushed them into the car. After entering the car, Miss Guinn looked up and saw Police Officer Nerlinger of the Lower Gwynedd Police Department a short distance away in his patrol car. She immediately began to scream for help; both girls jumped out of the car and ran to Officer Nerlinger. The two men escaped by running through the bushes and into nearby fields.

The Lower Gwynedd Police Department performed a registration check on the station wagon and discovered that it was registered in appellant's name. Early in the morning of May 25, 1974, appellant reported to the Conshohocken

[ 246 Pa. Super. Page 166]

    police that his car had been stolen. On the following day, the Lower Gwynedd police arrested appellant when he came to the station to retrieve his car.

After a preliminary hearing on June 5, 1974, appellant was bound over for action by the Grand Jury. Subsequent to his indictment, appellant filed a timely motion to suppress identification evidence and his prior convictions of statutory rape in 1964 and burglary in 1965. On January 29, 1975, appellant argued his pre-trial motions. On the following day, the lower court dismissed appellant's motion to suppress for noncompliance with Rule 323(d), ...


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