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COMMONWEALTH PENNSYLVANIA v. BERNETT LEE JOHNSON (03/07/80)

filed: March 7, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
BERNETT LEE JOHNSON, APPELLANT



No. 948 April Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County at No. CC 7701631A

COUNSEL

Patrick McFalls, Assistant Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Van der Voort, Spaeth and Watkins, JJ. Spaeth, J., concurs in the result.

Author: Van Der Voort

[ 275 Pa. Super. Page 346]

Appellant has appealed from a judgment of sentence which followed his conviction on a charge of burglary. He challenges the legality of his arrest and the use of evidence which resulted from it, contending that without such evidence there was an insufficient basis on which to convict him. Similar contentions were raised by post-trial motions and denied.

The circumstances of appellant's arrest were as follows: On March 1, 1977, at approximately 9:30 p. m., Officers Howard F. Trojanowski and William Varballa, cruising on patrol, heard by radio transmission a report of a residential burglary some seven blocks away and proceeded promptly to the scene. On a street immediately to the rear of the burglarized premises, the officers observed an automobile proceeding without headlights, an extremely loud muffler and three occupants. The officers put on the flashing red light of the police car and stopped the suspect vehicle within one block.

The appellant immediately got out of the car and walked toward the front of the vehicle but was stopped by Officer Trojanowski. Officer Varballa went to the driver's side of the car to check for an operator's license and, as he stood there, he saw two television sets on the rear seat. The operator of the car had no driver's license and a radio check on the scene revealed that he was unlicensed and had a previous unlicensed driving offense.

At that point, the officers took the three occupants of the automobile into custody and drove them to the police station. Within five to ten minutes after the arrival at the police station, the officers received a description of the television sets as the burglarized items, telephoned to the police station by a fellow officer from the burglarized home. A few minutes later, the victim of the burglary came to the police station and identified both television sets as the items stolen from his home. Thereupon, at approximately 10:00 p. m.,

[ 275 Pa. Super. Page 347]

    the appellant was placed under arrest and read his Miranda rights. About two hours later, appellant admitted to Officer Varballa that he had taken the television sets from the burglarized home, but claimed that his companions were not involved.

The burglary took place on March 1, 1977. On March 8, a preliminary hearing was held at which appellant was represented by counsel from the Public Defender's office. The arresting officers were present at the hearing. A Praecipe for the appearance of appellant's counsel was filed on March 13. On April 7, appellant's counsel filed a motion to suppress, alleging that the appellant had been arrested illegally and that the items seized pursuant to his arrest, i.e., the television sets, were therefore inadmissible as evidence. On May 26, 1977, a hearing was held on the motion to suppress, immediately preceding trial on the merits.

At the commencement of the suppression hearing, appellant's counsel moved to amend the motion to suppress to include "any confessions or admissions made as a result of the illegal arrest". The court refused to permit amendment because it was not made within thirty days after arraignment as required by Rules 306, 307 and 323 (b) of the Rules of Criminal Procedure. At the conclusion of the suppression hearing, the court ruled that the arrest ...


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