No. 293 October Term, 1977, Appeal from Judgment of Sentence of Court of Common Pleas of Lancaster County, Pennsylvania, Criminal Division, at No. 2475 of 1974.
Edward F. Browne, Jr., Assistant Public Defender, Lancaster, for appellant.
D. Richard Eckman, District Attorney, Lancaster, submitted a brief for Com., appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Hoffman, J., joins. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 257 Pa. Super. Page 337]
On April 25, 1974 at approximately 9:20 P.M., plainclothes officers John Ulrich and James Neimer were traveling north in an unmarked police cruiser on North Lime Street in Lancaster, Pennsylvania. According to the testimony of Captain Ulrich, their police cruiser had just passed the intersection of Grant and North Lime Streets when he saw a lone individual walking north. Under the street lights, it appeared to Officer Ulrich that the individual was a man named Cornell Galloway, who at that time was a convicted murderer escaped from prison. Captain Ulrich told Lt. Neimer of his observation and directed that the latter pull the car to the side of the street. When they did this, appellant crossed the street and continued along his way on the opposite side.
Captain Ulrich got out of the automobile and started to walk after appellant. When appellant turned to walk down Orange Street, Captain Ulrich called to him, identifying himself as a police officer, and told appellant to stop. Captain Ulrich testified that his reason for doing this was his belief that appellant was Cornell Galloway.
When he heard the officer call to him, appellant stopped, turned around and began to walk back towards Captain Ulrich. As he did so, a car passed between the two men. Captain Ulrich then saw appellant put his hand into his right pocket "as if he grabbed something," though Captain Ulrich could not see more than this because of the passing auto. After the vehicle moved, ten glassine packets of what was later proved to be heroin were found lying on the street near appellant. Captain Ulrich testified that he didn't see any glassine packets lying on the street before the car passed.
[ 257 Pa. Super. Page 338]
Captain Ulrich led appellant to the sidewalk and frisked him, taking a pistol from appellant's person. Even then, Captain Ulrich believed that appellant might be Cornell Galloway. While this action was going on, Lieutenant Neimer was picking up the glassine packets. Appellant was arrested and taken to the police station for apparent possession of heroin and a firearms violation.*fn1 Before he arrived at the station, appellant told the officers his name and Detective Henry, at the station, checked the identification.
Appellant raises three issues with his appeal. First, it is argued that the stopping of appellant was unconstitutional and that any evidence seized in connection with this incident should be suppressed. It is admitted that the police need not meet the strict probable cause standard to justify a brief stop of a suspicious individual. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967); Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Commonwealth v. Jones, 474 Pa. 364, 378 A.2d 835 (1977); Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970); Commonwealth v. Ellis, 233 Pa. Super. 169, 335 A.2d 512 (1975); Commonwealth v. Smith, 225 Pa. Super. 509, 311 A.2d 716 (1973). On this point, we quote at length from Adams v. Williams, supra, in which the Supreme Court said,
"In Terry this Court recognized that 'a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.' . . . 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 recognizes that it may be the essence of good police work to adopt an intermediate response. . . . A brief stop of a suspicious individual in order to determine his identity or to maintain the status quo momentarily while obtaining
[ 257 Pa. Super. Page 339]
more information, may be most reasonable in light of the facts known to the officer at the time." 407 U.S. at 145-146, 92 S.Ct. at 1923 (citations omitted).
Recently, our Supreme Court has noted that there are two kinds of "stops." First, there is the "legal stopping" which is for the purpose of approaching a person and addressing questions to him. Commonwealth v. Jones, supra, 474 Pa. at 369-372, 378 A.2d at 838-839, citing Commonwealth v. Berrios, 437 Pa. 338, 340, 263 A.2d 342 (1970). Second, there is the "forcible stop" which restrains an individual's freedom. Commonwealth v. Jones, supra, 474 P. at 371-372, 378 A.2d at 839, citing Terry v. Ohio, supra, 392 U.S. at 32, 88 S.Ct. 1868. As the court indicated, the force used to restrain the individual may either be a physical force or a show of authority. Commonwealth v. Jones, 474 P. at 371-372, 378 A.2d at 839, citing Terry v. Ohio, 392 U.S. at 19, 88 S.Ct. 1868. Commonwealth v. Berrios, supra, said that a policeman may legally stop and question a person but that the officer may not restrain that individual from walking away "unless he has 'probable cause' to arrest that person or he observes such unusual ...