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COMMONWEALTH PENNSYLVANIA v. MATTHEW THOMAS (09/14/79)

filed: September 14, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
MATTHEW THOMAS, APPELLANT



Nos. 235 & 236 Special Transfer Docket, Appeal from the Judgment of Sentence of the Court of Common Pleas of Delaware County, Criminal Division, at Nos. 8844-A of 1975 and 991 J & L of 1977.

COUNSEL

G. Guy Smith, Media, for appellant.

David Fritchey, Assistant District Attorney, Media, for Commonwealth, appellee.

Wieand, Nix and Wekselman, JJ.*fn*

Author: Wieand

[ 269 Pa. Super. Page 410]

The body of Michael Kissinger was found at 2:00 a. m. on December 30, 1975, in the restroom of Shorty's Mobil Station, where he had been employed, in Delaware County. He had been shot once in the back of the head. Detective George Souder and Sergeant Ernest Bryant of the Delaware County Criminal Investigation Department were told by a police officer on routine patrol that a suspicious vehicle had been seen driving slowly in the vicinity of the station. The officer had made a note of the New Jersey license number, and this was given to Souder. With this information Souder traced the vehicle to a resident of Glassboro, New Jersey.

[ 269 Pa. Super. Page 411]

Thereafter, Bryant, Souder and several New Jersey police officers went to the home of the owner, Robert Stewart, about 6:30 a. m. Stewart related to them that his 18-year-old daughter, Patricia, had taken the car the night before to stay with a friend and had not returned. When she was subsequently located at the home of her friend, Patricia gave a statement to Detective Souder which disclosed that she and three other friends, including appellant, had driven to Delaware County in Pennsylvania late on the night of December 29. Appellant and one of the other occupants of her car had told Patricia that they planned to hold up a gas station, and they left the car for that purpose. After the remaining occupants had driven around for a short time, appellant and his cohort rejoined Patricia and the fourth person in the car. The two men related that they had knocked out the attendant of the gas station and left him in the restroom, but had not taken any money. The time period described by Ms. Stewart coincided with the time of the shooting.

With this statement and the information he had gained in the course of a ten hour investigation, Detective Souder called his superior in Pennsylvania to obtain arrest warrants. The requested warrants were issued, and New Jersey police set out to make the arrest. At approximately 1:00 p. m. on December 30, appellant and his colleague were spotted fleeing across a field. They were apprehended and taken into custody. Appellant, when apprehended, was wearing a blood-stained jacket.

Subsequent to the arrest, police conducted a consensual search of the house where appellant had been residing with a friend. A pistol, determined to be the murder weapon, and a holster were seized.

Appellant was found guilty by a jury of murder in the third degree, crimes committed with firearms, and conspiracy. His post trial motions were denied, and appellant now appeals from the judgment of sentence imposed.

[ 269 Pa. Super. Page 412]

The sole issue raised in this Court is whether there was probable cause for appellant's arrest. If, as appellant contends, the police lacked probable cause to arrest, then his clothing, gun and holster should have been suppressed as products of an unlawful arrest. The Commonwealth concedes the insufficiency of facts contained in the affidavit which was presented to the magistrate in Pennsylvania. It contends, however, that the police possessed information sufficient to constitute probable cause to arrest for a felony without a warrant. We agree with this position. See: Commonwealth v. Whitson, 461 Pa. 101, 334 A.2d 653 (1975). Detective Souder, who was in charge of the investigation and who ordered the arrest, knew that appellant had been in the vicinity of the murder scene in a vehicle which he later exited for the purpose of robbing a gas station. He also knew that when appellant and his companion returned to the vehicle they told the remaining occupants that they had knocked out the gas station attendant and left him in the restroom. He also knew that the decedent, in fact, had ...


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