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COMMONWEALTH PENNSYLVANIA v. CLINTON FLYTHE (12/14/79)

filed: December 14, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
CLINTON FLYTHE, APPELLANT



No. 1832 October Term, 1978, Appeal from the judgment of sentence of Lowe, P.J., dated January 25, 1978, in the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division, at No. 2552-77.

COUNSEL

Arthur J. King, Chief, Appeals Division, Norristown, for appellant.

James A. Cunningham, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Price, Spaeth and Watkins, JJ. Spaeth, J., files a dissenting opinion.

Author: Watkins

[ 273 Pa. Super. Page 250]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Montgomery County, Criminal Division, by the defendant-appellant, after conviction, non-jury, of criminal conspiracy and possession of instrument of crime.

The defendant claims that the evidence adduced at his trial was insufficient to convict him of the offenses.

On July 8, 1977, an officer of the Lower Merion Township Police Department was patrolling in an unmarked vehicle at a shopping center when he noticed two males proceeding towards him on foot. Upon seeing the officer, who was in

[ 273 Pa. Super. Page 251]

    uniform, the men "turned heel" and ran to an automobile which was parked about eighty yards away. The officer followed the vehicle and observed two other occupants in it. The defendant was seated in the front passenger seat. As the vehicle moved away from the officer he noticed that it's registration plate had been altered and that it was leaving the area through an "entrance only" route. The officer then approached the vehicle and observed the defendant lean down as if to push something under the seat. Upon stopping the vehicle the officer noticed the grip of a pistol protruding from underneath the seat. He thereupon summoned additional police. When they arrived they searched the vehicle and found a GT tear gas gun, 928 cc container of mace, and a valise containing bolt cutters and an adjustable wrench. Defendant was arrested, tried and convicted of possession of instruments of crime (18 C.P.S.A. 907) and criminal conspiracy (18 C.P.S.A. 903). He was sentenced to serve a term in prison of one to five years.

Defendant claims that the search of the vehicle was unlawful. His motion to suppress the evidence was denied by the court below. The officer's stopping of the vehicle for the traffic violation did not justify a search of the vehicle. However, his subsequent observations of defendant leaning over as if to push something under the passenger seat and his observation of the pistol grip protruding from under the seat gave him sufficient independent probable cause to search the vehicle. Commonwealth v. Thomas, 254 Pa. Super. 505, 386 A.2d 64 (1978). Therefore, the court below properly denied defendant's suppression motion.

The test of sufficiency of the evidence is whether accepting as true all the evidence and all reasonable inferences drawn therefrom, upon which if believed, the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that defendant is guilty of the offense. Commonwealth v. Eddington, 255 Pa. Super. 25, 386 A.2d 117 (1978). The defendant may be convicted on wholly ...


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