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COMMONWEALTH PENNSYLVANIA v. ROBERT BURRELL (05/08/81)

filed: May 8, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT BURRELL, APPELLANT



No. 1686 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Phila. County, Criminal at Nos. 157 July 1978.

COUNSEL

Daniel M. Preminger, Philadelphia, for appellant.

Paul S. Diamond, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Brosky and Hoffman, JJ.

Author: Spaeth

[ 286 Pa. Super. Page 504]

This is an appeal from judgments of sentence for carrying a firearm on a public street*fn1 and carrying a firearm without a license.*fn2 The principal issue is whether counsel who presented appellant's motion to suppress was effective. We have concluded that it is arguable he was not. Accordingly, we shall remand for a hearing.

On February 1, 1978, Philadelphia Police Officer Gregory Michael and a fellow officer stopped a 1976 Cadillac Seville in the 1700 block of Cambria Street in Philadelphia. Officer Michael approached the Cadillac from the rear on the passenger side. As appellant got out, the officer saw what appeared to be the handle of a revolver protruding from appellant's right coat pocket. The officer frisked appellant and found a .38 caliber revolver in his pocket. Appellant had not been issued a license to carry the revolver.

On July 27, 1978, appellant presented to the Municipal Court a motion to suppress the revolver as evidence. The ground of the motion was that the police had no reasonable basis for stopping the Cadillac. A hearing on the motion

[ 286 Pa. Super. Page 505]

    was held. Officer Michael testified that the Cadillac was stopped because its taillight was defective. Appellant testified that the taillight was not defective. The hearing judge believed the officer, and denied the motion. Appellant was then tried and found guilty of possession of an offensive weapon, carrying a firearm on a public street, and carrying a firearm without a license. Appellant appealed to the Court of Common Pleas, and on April 25, 1979, was tried without a jury on the same charges. He had new counsel at this trial. He was found guilty of carrying a firearm on a public street and carrying a firearm without a license. Appellant filed post-trial motions, which were denied, and sentence was imposed. On appeal, appellant is represented by new counsel, who argues the ineffectiveness of both Municipal Court counsel and Common Pleas counsel.

Appellant argues that Municipal Court counsel was ineffective for failure to call appellant's wife and mother to testify at the suppression hearing. According to appellant: If called, his wife and mother would have testified that when the Cadillac was stopped, it did not have a defective taillight. If accepted, the testimony would have established the illegality of the stop and search, for a "spot" check is illegal. See Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973). The police may stop an automobile if they reasonably suspect a possible violation of the Vehicle Code, Commonwealth v. Sojourner, 268 Pa. Super. 472, 408 A.2d 1100 (1979); Commonwealth v. Hunter, 240 Pa. Super. 23, 360 A.2d 702 (1976), but here, if the Cadillac's taillight was not defective, they had no reason to suspect such a violation.

The standard by which we determine the effectiveness of counsel has been set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967):

[O]ur inquiry ceases and counsel's assistance is deemed constitutionally effective once we are able to conclude that the particular ...


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