No. 2414 Oct. Term, 1979, APPEAL FROM THE DENIAL BY THE COURT OF COMMON PLEAS, CRIMINAL TRIAL DIVISION OF PHILADELPHIA COUNTY (Misc. No. 79-910070) OF A WRIT OF CERTIORARI TO THE MUNICIPAL COURT OF PHILADELPHIA COUNTY AT MC. 78-12-2646.
John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Hoffman and Cirillo, JJ.*fn* Hoffman, J., concurs in the result. Brosky, J., files a dissenting opinion.
[ 282 Pa. Super. Page 593]
The appellant, George Blakey, was tried before the Municipal Court of Philadelphia County on charges of carrying a firearm without a license and carrying firearms on public streets. Appellant was found guilty of both charges and was sentenced to one year probation and a fine plus court costs. Mr. Blakey, the appellant, then filed a Petition for a Writ of Certiorari with the Court of Common Pleas. Appellant's request for a Writ of Certiorari was denied, and he appealed to this Court.
The facts of this case are as follows: Officer Anthony Morina was the sole witness for the Commonwealth. He testified that at approximately 7 p. m., December 27, 1978, informants told him that two men, who earlier in the evening had attempted a robbery at 1412 West Columbia Street, were presently in a house at 1745 North Sydenham Street. An informant described the alleged robbers as two Negro males, one short with medium complexion and wearing a blue jacket; the other, a taller male of dark complexion attired in a brown coat.
Shortly thereafter, Officer Morina left Columbia Avenue and quickly traversed the three-fourths of a block distance to 1745 North Sydenham Street. The Officer observed a Negro male standing next to a car parked in front of the house at that address. This male, George Blakey, the appellant, generally fit the description of that individual said to be wearing a blue jacket, one exception being his "small" height which in reality was 5'11". A taller, darker complexioned male who fit the description of the other man as reported by the informant, sat in the front passenger seat.
[ 282 Pa. Super. Page 594]
In response to Officer Morina's question, the appellant admitted owning the car. The male inside, John Clark, was ordered out and the Officer frisked both individuals. Three live thirty-eight rounds of ammunition were found in the appellant's left pocket. Nothing was found on Mr. Clark's person. Officer Morina then searched appellant's car and found a .38 caliber revolver under the front passenger seat where Mr. Clark had been sitting.
The Commonwealth introduced a ballistics report which found the gun to be operable, and a certification by the Pennsylvania State Police that the appellant was not licensed to carry a firearm.
In challenging the "stop and frisk" tactics used by Officer Morina, the appellant claims that the Officer lacked probable cause to search him and that the resulting search of the car and finding of a weapon were fruits of an illegal arrest and should be excluded as illegal evidence.
In two landmark cases, Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the United States Supreme Court set down guidelines regarding material given to police by informants and the use of such information to establish probable cause for an arrest and/or a "stop and frisk." The information provided must contain specific facts which when viewed by a reasonable person would lead them to view the suspect as likely to have committed a crime or about to do so. The Officer must also be able to relate the underlying ...