No. 1352 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, at No. 1768 November Sessions, 1975.
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. Hoffman, J., files a dissenting opinion. Spaeth, J., files a dissenting opinion in which Cercone, J., joins.
[ 252 Pa. Super. Page 500]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, Trial Division, by the defendant-appellant, John LeSeuer, after conviction in a non-jury trial on charges of burglary and criminal conspiracy.
Pre-trial motions to suppress were denied as to physical evidence, but granted as to certain statements. He was sentenced to five years probation on the burglary charge and sentence was suspended on the conspiracy charge.
Officer Machel of the Philadelphia Police Department and his partner observed the appellant and another man carrying five pieces of stereo equipment on South 50th Street. As the two men passed the officers' patrol wagon, an unidentified elderly man waved the wagon down and stated that the men in question had just come running out of a house carrying the equipment.
When the police stopped the men for questioning, the appellant stated he was coming from a "hock" shop where he had been unable to "hock" the equipment because of the lack of a turntable needle. Officer Machel's partner examined the turntable and found it had a needle. The appellant was taken into custody, but because there was no report of a burglary in the neighborhood, he was released and given a property receipt for the equipment. The next morning the police learned that the equipment had been claimed by a burglary victim. The appellant was then rearrested.
The appellant contends that his arrest and the seizure of the equipment were without probable cause and were therefore illegal. The facts disclose that the police officers observed the appellant carrying expensive stereo
[ 252 Pa. Super. Page 501]
equipment in a high crime area. A disinterested observer informed the police that the appellant had been seen running out of a house carrying the material. This would not be sufficient to arrest the appellant. However, "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] recognizes that it may be the essence of good police work to adopt an intermediate response." Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).
The officers "stop and search" of the defendant in this case was a valid intermediate response. When defendant's explanation was patently untruthful, there was then probable cause to take him into custody and seize the suspected property. As stated by Judge Van der Voort in Commonwealth v. Hayes, 237 Pa. Super. 510, 513, 352 A.2d 121, 122 (1975):
"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 reasonable trustworthy information are sufficient to warrant a man of reasonable caution in believing the suspect has committed or is committing a crime."
Under the factual circumstances of this case, a man of reasonable caution would suspect criminal activity was afoot. The instant case is unlike the situation in Commonwealth v. Mackie, 456 Pa. 372, 320 A.2d 842 (1974), on which the appellant relies. There, the only reason ...