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COMMONWEALTH PENNSYLVANIA v. DOUGLAS KENT DENNIS (07/31/81)

filed: July 31, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
DOUGLAS KENT DENNIS, APPELLANT



No. 1074 April Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Allegheny County, Criminal Division, at CC 7900047A

COUNSEL

Donald R. Calaiaro, Pittsburgh, for appellant.

Kathryn L. Simpson, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Spaeth, Johnson and Popovich, JJ.

Author: Popovich

[ 289 Pa. Super. Page 307]

Appellant, Douglas Kent Dennis, was arrested and charged with robbery*fn1 and possession of a prohibited offensive weapon.*fn2 A timely filed pre-trial motion to suppress evidence was heard and denied. Appellant's first trial ended in a mistrial; thereafter, a second trial was held and a jury found appellant guilty of possessing an offensive weapon and not guilty of robbery. Following denial of post-verdict motions, a sentence of five (5) years probation was imposed. Appellant appeals from said sentence on the basis that the evidence, allegedly obtained as a result of his illegal arrest, was impermissibly admitted into evidence. For the reasons stated herein, we disagree and affirm the judgment of sentence.

The circumstances giving rise to appellant's arrest are as follows: On November 30, 1978, Homestead Police Officers Kelly and Kinney received a radio call at approximately 4:00 A.M. to check out "a suspicious car in the 100 block, East Plum Way" -- this section of the Borough was considered by police to be a "high-crime" area which "had quite a few assaults and strongarms." (N.T. 5/16/79, at 57) When the officers arrived at the site they observed a vehicle blocking access to and from the alley, an individual, later identified as Russell Brooks, leaning into the right front passenger side door and three individuals sitting in the vehicle, i. e., James Teter (the complainant), a Joseph Ellis and the appellant. The police drove within 15 feet of the vehicle and started walking toward it when Brooks alighted completely out of the vehicle and began shouting, "nothing is happening, nothing

[ 289 Pa. Super. Page 308]

    is going on." Id. at 55. Officer Kelly told him to "Hold it". Brooks became somewhat nervous, e. g., he started "jumping up and down" and "walking back and forth" saying, "'There's nothing happening here. We just lost something. Everything is all right. You can leave.'" (N.T. 6/13/79, at 113) When Brooks failed to heed a second request to "Hold it", the officers drew their weapons and aimed them in the air; the officers then ordered the occupants out of the vehicle. James Teter ran from the vehicle into the police cruiser yelling, "They have got a gun." (N.T. 6/13/79, at 38) Hearing this, Officer Kelly radioed for assistance and within a short period of time two additional squad cars arrived. The police made arrests and conducted pat-downs. A .20 gauge No. 6 Remington shotgun shell and a piece of string was seized from appellant's person.*fn3 A search of the vehicle produced a .20 gauge sawed-off shotgun located in the right rear section, the exact spot where appellant sat.*fn4

The appellant contends on appeal that his arrest was unlawful.*fn5 Thus, given the illegality of the arrest, appellant asserts that the evidence seized as a result thereof was

[ 289 Pa. Super. Page 309]

    tainted and inadmissible at trial, rendering his conviction unwarranted. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We do not agree.

Before discussing the validity of appellant's arrest we will first address the propriety of the "investigatory stop," which appellant assails on the basis that, inter alia, the prosecution failed to prove: "A. That [the police] observed unusual conduct which led [them] to reasonably conclude in light of [their] experience that criminal activity was afoot and that the person with whom [they were] dealing with ...


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