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COMMONWEALTH PENNSYLVANIA v. HARRY P. PYTAK (06/20/80)

filed: June 20, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
HARRY P. PYTAK, APPELLANT



No. 3014 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Lehigh County, Criminal Division, Nos. 913, 914 of 1977.

COUNSEL

Carol McGinley, Assistant Public Defender, Allentown, for appellant.

Scott K. Oberholtzer, Assistant District Attorney, Allentown, for Commonwealth, appellee.

Price, Gates and Dowling, JJ.*fn*

Author: Price

[ 278 Pa. Super. Page 481]

Appellant was tried before a jury and convicted on September 20, 1977, of kidnapping*fn1 and robbery.*fn2 He filed post-verdict motions for a new trial and in arrest of judgment, which were denied by the court en banc. He takes this appeal alleging that the trial court erred in failing to suppress items seized as a result of an illegal search and in failing to grant his motion for a mistrial following allegedly prejudicial testimony concerning identification from a photographic array. Since we find that these contentions lack merit, we affirm the judgment of sentence.

[ 278 Pa. Super. Page 482]

The following facts were adduced at trial. On the morning of December 11, 1976, a car with two male occupants pulled into Miller's Mobil Station and was serviced by James Mulqueen, an attendant. The car was driven away, but returned a few minutes later. The two occupants exited the car and entered the station. At gun point they took $100 from the cash register, and a watch and cash that Mulqueen had in his possession. They then forced Mulqueen into the car and drove off. Eventually, Mulqueen was released near Tamaqua, Pennsylvania.

Appellant's arrest was accomplished as a result of the following sequence of events that were revealed at the suppression hearing. On December 16, 1976, at about 10:30 a. m., State Trooper Stephen Sepkowski of the Pottsville substation went to the Schuylkill County Prison and received a written statement from one Christine Stephany that implicated her husband and appellant in a burglary and auto theft that had occurred in Schuylkill County.*fn3 Later, during the same morning, Trooper Sepkowski was contacted by Patrolman Toby Harbst of the South Whitehall Police Department, Lehigh County, and informed that felony warrants for kidnapping and robbery had been issued for appellant's arrest. Patrolman Harbst expected to arrive at the Pottsville substation by 1:00 p. m. that day and requested help in serving the warrants. At approximately 11:45 a. m. a confidential informant contacted Trooper Sepkowski and stated that appellant planned to sell his automobile at 1:00 p. m. on that day and then leave the area. This informant had, on one prior occasion, supplied the police with information that proved to be true.

At this point, Trooper Sepkowski attempted to contact a magistrate to procure a warrant for appellant's arrest, but learned that the magistrate was at lunch. The officer was unable to contact him at the restaurant the magistrate sometimes frequented, and he decided to proceed without a

[ 278 Pa. Super. Page 483]

    warrant. Accompanied by three other officers, Trooper Sepkowski went to appellant's residence. Before entering, he observed appellant's car outside the building and noted that the front and rear floors of the vehicle were cleaner than he had observed them on previous occasions. He knocked on the door, and appellant answered and allowed the officers to enter. Trooper Sepkowski read him his rights and informed him that he was being arrested for burglary and auto theft. After explaining this, Trooper Sepkowski noticed a watch hanging from a nail in a nearby wall of the apartment. It fit the description Patrolman Harbst had previously given him of a watch taken during a robbery and kidnapping that he was investigating, in which appellant was mentioned as a suspect. Trooper Sepkowski obtained appellant's signature on a consent to search form and seized the watch, which he subsequently turned over to Patrolman Harbst. It was later identified as the one taken in the Lehigh County robbery.

Appellant objects that this watch was illegally seized and inadmissible at trial because it was the product of a search following an illegal arrest. He claims that there was insufficient probable cause to support the arrest and, in any event, that ...


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