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COMMONWEALTH PENNSYLVANIA v. ANDRE LOVETTE (08/24/79)

filed: August 24, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
ANDRE LOVETTE, APPELLANT



No. 2366 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Imposed on Information No. 1673, December Session, 1976.

COUNSEL

John W. Packel, Assistant Public Defender, Chief, Appeals Division, Leonard Sosnov, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a dissenting opinion in which Hoffman, J., joins. Jacobs, former President Judge, did not participate in the consideration or decision of this case.

Author: Cercone

[ 271 Pa. Super. Page 252]

Appellant was convicted of burglary, theft and receiving stolen property and sentenced to four to twenty-three months imprisonment. Appellant seeks in the alternative that his judgment of sentence be arrested or that he be granted a new trial.

Appellant's first argument is that his arrest was constitutionally infirm because the police lacked probable cause to arrest him. Based upon the facts known at the time of arrest, we disagree. The arresting officer testified that on December 15, 1976 at 3:15 P.M. he received a radio dispatch to investigate males with stolen property in a deserted house. When the officers arrived they found stereos, Christmas gifts, clothing, pottery and other property stored in the vacant building. Across the driveway from the empty house, the police saw a broken rear door to a house which they discovered had been burglarized. The owner of the burglarized house later identified the goods found in the abandoned house as being stolen from his house. In transporting the stolen property to the deserted house, the burglars crossed a rain-soaked backyard and left muddy trails of footprints between the two houses. Shortly after the owner of the burglarized house arrived and identified his property, Officer McCoy began to patrol the area. Approximately one and one-half blocks from the crime, the officer

[ 271 Pa. Super. Page 253]

    observed three males standing on the corner with mud and dirt on their shoes. Appellant was holding a brown paper bag in his hand. The officer approached and requested identification, but the men did not identify themselves. When asked how his shoes had become muddy, appellant hesitated and replied that he had probably walked through dirt or a field in the course of a day. The officer thought the answer evasive. When Officer McCoy inquired into the contents of the paper bag, appellant showed the officer a camel-hair colored hat and responded that he just got it from a friend of his. Officer McCoy then decided to transport the trio one and one-half blocks to see if the burglary victim could identify the hat. Before placing the group in the police wagon, the officer conducted a "pat-down" search which revealed that one of appellant's companions possessed a ring and a silver dime with numismatic value. The complainant identified all three items as being taken from his house. All three men were then arrested and taken to the police station.

Appellant does not actively contend that the police officer was not permitted to stop and detain him briefly for identification. Nor does appellant assert that the police lacked probable cause to arrest him once the hat had been identified. Rather he contends that probable cause was lacking when the officer drove appellant to the burglarized house. Appellant identifies the officer's placing him in the patrol wagon as the time of the arrest, because he was subject to the control of the officer.

While we accept that appellant was required to accompany the officer for the one and one-half block trip, we disagree with his conclusion that in order to do so the police were required to have the same quantum of proof necessary to support a full-blown arrest. We are not faced with the aspects of such an arrest but, rather, with an identification procedure by which the officer could determine whether there was probable cause to arrest appellant and formally charge him with the criminal offenses. Instead of arresting appellant, the officer made an intermediate response by

[ 271 Pa. Super. Page 254]

    transporting appellant and the property a short distance for identification. Intermediate responses previously have been approved by the courts of this Commonwealth. Commonwealth v. LeSeuer, 252 Pa. Super. 498, 382 A.2d 127 (1977); Commonwealth v. Harper, 248 Pa. Super. 344, 375 A.2d 129 (1977), as guided by the Supreme Court decisions in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). The officer in this case was reluctant to let appellant free to leave as neither appellant nor his companions had identified themselves; and the hat, as evidence, could easily be destroyed or concealed. At the same time, the officer was reluctant to arrest appellant on the basis of the information known to him at this time. Rather than force the officer to choose between such opposite responses, this court sanctions the use of an intermediate response such as the one used in this case. See also Commonwealth v. Harper, supra. Obviously, once the hat ...


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