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COMMONWEALTH PENNSYLVANIA v. EDWARD ZARSYCKI (08/15/80)

SUPERIOR COURT OF PENNSYLVANIA


August 15, 1980

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
EDWARD ZARSYCKI

No. 783 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Monroe County, Criminal Division, at No. 4 of 1979

Before Brosky, Wickersham and Eagen, JJ.*fn* Wickersham, J. files a Dissenting Opinion.

Per Curiam:

Order affirmed.

Chief Justice Eagen joins in this opinion.

WICKERSHAM, J.:

This case is controlled by our decision in Commonwealth v. Galadyna, 248 Pa. Superior Ct. 226, 375 A.2d 69 (1977) where we said at 230:

"The issue thus presented on this appeal concerns the propriety of the investigatory stop that was made by the police officers. It is well-settled that the Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). Clearly, a police officer may stop a person for brief questioning and investigation, even if he has insufficient probable cause to make an arrest, where he has observed unusual and suspicious conduct by such person which may reasonably lead him to believe that criminal activity is afoot. Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973); Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973); Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969). Indeed, it is well-settled that a police officer is justified in making a reasonable investigatory stop of a suspicious individual in order to determine his identity or to maintain the status quo temporarily while obtaining more information. Commonwealth v. Ferraro, 237 Pa. Super. 268, 273, 352 A.2d 548, 550 (1975), citing Adams v. Williams, 407 U.S. at 146, 92 S.Ct. at 1923; see also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Ellis, 233 Pa. Super. 169, 335 A.2d 512 (1975). However, the police officer must be able to point to specific and articulable facts which taken together with rational inferences from those facts reasonably warranted the intrusion. Commonwealth v. Ferraro, supra, 237 Pa. Super. at 273, 352 A.2d at 550."

See also Commonwealth v. Ferraro, 237 Pa. Superior Ct. 268, 352 A.2d 548 (1975).

In the instant situation the Pennsylvania State Police officers, in a marked State Police vehicle, observed the vehicle operated by appellee under suspicious circumstances, at a closed service station, at about 2:30 o'clock in the morning and in a high crime area.

The officers followed the vehicle for a short distance and then engaged in a brief discussion with the driver-appellee on a purely voluntary basis insofar as appellee was concerned. When the officers observed, in plain view, materials they expected were stolen (and which turned out to be stolen property), the officers placed appellee under arrest and proceeded with their investigation.

Clearly under the circumstances here present, the trial court should not have suppressed the evidence and should not have dismissed the criminal complaint against Edward Zarzycki.


*fn* Chief Justice Michael J. Eagen of the Supreme Court of Pennsylvania is sitting by designation.


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