No. 774 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Montgomery County No. 1687-77
John J. Burfete, Jr., Assistant District Attorney, Norristown, for Commonwealth, appellant.
Stephen G. Yusem, Norristown, for appellee.
Van der Voort, Wieand and Lipez, JJ.
[ 269 Pa. Super. Page 521]
John J. Kazior, the appellee herein, was arrested and charged with burglary,*fn1 theft,*fn2 receiving stolen property,*fn3 conspiracy,*fn4 possessing instruments of crime,*fn5 and possessing a prohibited offensive weapon.*fn6 Following a pre-trial hearing, the trial court found that appellee's arrest had been illegal. Therefore, the court entered an order which (1) suppressed physical evidence removed from appellee's vehicle, (2) suppressed appellee's confession, and (3) quashed the informations against appellee. The Commonwealth appealed.
An appeal by the Commonwealth is proper. If unreversed, the trial court's order will result in a termination of the prosecution. This is readily apparent from the court's order and also from the record. It seems clear, therefore, that we should hear and decide the Commonwealth's appeal. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963).
The court's order quashing the informations was clearly in error. "It has long been the law in this and in other jurisdictions that 'the mere fact that the arrest of an accused person is unlawful is of itself no bar to a prosecution on a subsequent indictment or information, by which the court acquires jurisdiction over the person of the defendant.'" Commonwealth v. Krall, 452 Pa. 215, 219, 304 A.2d 488, 490 (1973). See also: Commonwealth v. Walker, 243 Pa. Super. 388, 365 A.2d 1279 (1976); Commonwealth v. Mills, 235 Pa. Super. 173, 340 A.2d 900 (1975). Thus, even if the trial court's determination of an unlawful arrest were correct,
[ 269 Pa. Super. Page 522]
an order barring prosecution on the subsequent information was improper.
We also disagree with the trial court's conclusion that appellee's arrest was unlawful. The undisputed evidence establishes a legal, warrantless arrest based on probable cause. On April 27, 1977, at or about 6:00 o'clock, A.M., Officer Charles Duffy heard on his police radio an announcement that a burglar alarm had sounded at Sousan's Pharmacy on York Road, in Elkins Park, Cheltenham Township. Duffy was then at or near the intersection of Church Road and York Road and realized that the pharmacy was only about 125 yards from his position. He looked down York Road and observed two men leave the front of Sousan's Pharmacy and run across York Road. One of the men, he noted, was wearing a green army jacket. Duffy turned into York Road to give pursuit but, despite the absence of traffic, lost sight of the two men. When he arrived at the drug store, he turned into Stahr Road, a side street opposite the pharmacy, where the men had run. Unable to find them, he returned to York Road where he met Officer McGinn, who, upon arrival, had examined the door of Sousan's Pharmacy and found a pane of glass broken therein. Together, they searched the area until their attention was directed by a resident to a vehicle parked at the intersection. Duffy and his fellow officer looked into the vehicle and saw appellee seated on the front floor, under the steering column, with his head on the driver's seat. Another young man was in a similar position on the passenger's side of the vehicle. The police knocked on the windows of the car, and appellee unlocked the door. As appellee emerged from the car, Duffy observed a green army jacket on the floor of the car where appellee had been crouched. When Duffy picked up the jacket, a pair of pliers fell from a pocket. Under the jacket was a "dagger-type knife." Also in plain view in the car were a flashlight and an empty jar with an amphetamine label.
Appellee was placed under arrest and taken to the Cheltenham Township police station. He ...