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COMMONWEALTH PENNSYLVANIA v. JOSEPH J. WASIUTA (08/29/80)

filed: August 29, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH J. WASIUTA, APPELLANT



No. 1395 October Term 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, No. 760 November Session 1978.

COUNSEL

Jeffrey Staniels, Assistant Public Defender, Philadelphia, for appellant.

Victor M. Fortuno, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Hester, Wickersham and Lipez, JJ. Wickersham, J., files a dissenting statement.

Author: Lipez

[ 280 Pa. Super. Page 257]

Appellant was convicted, after a non-jury trial, of theft by receiving stolen property.*fn1 We agree with his contention that the court below erred in refusing to suppress certain evidence adduced at trial, and reverse.

The record shows the facts as follows:

On November 6, 1978, two police officers drove, in their patrol wagon, to an intersection in Philadelphia in order to investigate a police radio call reporting a disorderly crowd. When they arrived, they observed appellant standing on the

[ 280 Pa. Super. Page 258]

    sidewalk displaying an object to a small group of men. One of the officers thought that the object was a gun. Upon seeing the officers, appellant placed the object inside the waistband of his trousers and walked quickly away from them. The policemen caught up with him, grabbed his arm, reached into the top of his trousers and retrieved the object. It was, thereupon, immediately apparent that the object was not a gun, but rather a camera. The camera had been stolen earlier that day in a burglary of which the officers had no knowledge whatever. The record shows that, at this point, one of the officers asked appellant what he was doing with the camera and where he had obtained it,*fn2 and appellant made a statement in response to the questions. Appellant was then taken into custody. The officers learned only after they had taken appellant to the police station that the camera had been reported stolen.

Appellant now argues that since, at the time the camera was found in appellant's possession, the officers had no knowledge or even reasonable suspicion that appellant's possession of it was related to criminal activity, his arrest was illegal and the camera should have been suppressed. We agree and reverse.

In the court below, Halbert, J., appellant moved for suppression of the camera and the statement. The statement was suppressed, but the camera was not. Neither side appealed this order, and the Commonwealth made no ...


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