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decided: December 2, 1977.


No. 2337 October Term, 1976, Appeal from the Order of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County, at No. Misc. 76-00-4006 (M.C. 76-03-1113).


John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.

Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs and Spaeth, JJ., concur in the result. Hoffman, J., files a dissenting opinion in which Cercone, J., joins.

Author: Van Der Voort

[ 251 Pa. Super. Page 494]

Early in the afternoon on March 9, 1976, a bank on South 52nd Street in Philadelphia was robbed. A call went out over the police radio describing the robbers as two negro males, one light-skinned, both with short-cropped hair, one wearing a green army jacket and one wearing a short brown coat. Officer Dennis Jerome and a fellow police officer heard the call and proceeded in their stakeout wagon in the direction of the bank. On the way, they passed appellant Harry Hill, a light-skinned negro with short-cropped hair, wearing a green army jacket, sitting in a car with a negro companion who also had short-cropped hair and who was wearing a green army shirt. The police officers got out of their wagon and asked appellant and his companion to step out of their car. A search of appellant's person turned up an operable .22 calibre automatic pistol with obliterated serial numbers in appellant's right front jacket pocket. Appellant was arrested and was charged with carrying a firearm without a license, altering or obliterating firearm identification marks, possession of an instrument of crime, possession of a prohibited offensive weapon, and conducting a lottery.

Appellant was tried in Philadelphia Municipal Court on May 18, 1976, was found guilty of carrying a firearm without a license, and was sentenced to pay a fine of $100 plus costs. On certiorari to the Philadelphia Court of Common Pleas, appellant argued that the Commonwealth had failed to prove its case because it had not proved appellant to be the person referred to in a State Police document which certified that Harry Hill of 5506 Spruce Street was not licensed to carry a firearm, and that the Municipal Court

[ 251 Pa. Super. Page 495]

    had erred in denying his motion to suppress the gun as fruit of an illegal arrest. The Court of Common Pleas, by Order dated August 11, 1976, denied appellant relief, and appellant brought this appeal to our court raising the same two issues. Neither one merits a reversal.

It is clear that the burden rests with the Commonwealth to prove beyond a reasonable doubt that a person accused of carrying a firearm without a license in fact did not have a license to carry the firearm. Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975). In the case before us, the Commonwealth introduced a certificate to establish that one Harry Hill, negro male, age 21, social security number 193-46-9876, of 5506 Spruce Street, had not been issued, as of March 9, 1976 (the date of the offense) a registration permit or license under either Section 6106(c) or Section 6109 of the Crimes Code. Appellant argues, however, that the Commonwealth produced no evidence to indicate that appellant was the Harry Hill referred to in the certificate, or, since appellant remained mute at arraignment and did not testify at trial, that appellant was even named Harry Hill. Although clever, appellant's argument is not persuasive. Included with the official record certified to our court is a document captioned "Defendant Notice of Appearance." This paper, addressed to "Harry Hill" and signed by "Harry Hill," ordered Mr. Hill to appear in Philadelphia Municipal Court, room 675, on May 18, 1976, as a defendant in case 76-03-1113. Appellant appeared at the time and place indicated, thereby acknowledging that he answered to the name Harry Hill. Other documents, the Municipal Court Hearing List, the Complaint, and the Criminal Transcript, indicated that the defendant's address was 5506 Spruce Street. Finally, the Certification of Bail and Discharge for Municipal Court No. 76-3-1113 was signed by Harry Hill of 5506 Spruce Street. It is clear from the record that appellant was the person indicated in the State Police certificate, and that appellant was not licensed to carry a firearm.

Appellant also argues that the pistol found on his person was the fruit of an illegal arrest and search and

[ 251 Pa. Super. Page 496]

    should have been suppressed by the lower court. We disagree. Whether a police officer has probable cause to arrest depends upon whether at the time of the arrest the facts and circumstances within the knowledge of the officer, or of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in believing that the suspect has committed or is committing a crime. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Commonwealth v. Murray, 437 Pa. 326, 329, 263 A.2d 886 (1970); Commonwealth v. Tookes, 236 Pa. Super. 386, 388, 344 A.2d 576 (1975). Each case must be reviewed under its own unique facts and circumstances. Commonwealth v. Mackie, 456 Pa. 372, 376, 320 A.2d 842 (1974). In the case before us, police officers received a radio bulletin that two men had just robbed a nearby bank. Proceeding in the direction of the bank, the police officers came upon appellant and his companion approximately twenty to twenty-five minutes after the robbery, sitting in a car within two blocks of the bank. The police did not know in which direction the robbers had headed, and apparently did not know whether the robbers had left the bank on foot or in a car. Twenty minutes was not such a long time that it could be said with assurance that the robbers would certainly have left the area, and appellant and his companion matched the descriptions of the robbers well enough that the police would have been negligent in not stopping to investigate. We find under ...

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