No. 517 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, Nos. 438-441, April Session, 1979
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Johnson and Popovich, JJ. Johnson, J., files a dissenting opinion.
[ 292 Pa. Super. Page 280]
Appellant was convicted at a non-jury trial of burglary,*fn1 possessing instruments of crime,*fn2 carrying firearms on a public street,*fn3 and criminal trespass.*fn4 Sheridan filed post-verdict motions which were denied. He was sentenced to serve a term of imprisonment lasting one to ten years for burglary, a concurrent sentence of one to three years for possessing instruments of crime, a concurrent sentence of one to two years for carrying firearms on a public street and a concurrent sentence of one to three years for criminal trespass. This appeal followed. We affirm the decision of the trial court.
In the early morning, 2:50 a. m., of March 19, 1979, Robert Waters was awakened from his sleep at his apartment at 2008 Pine Street, Philadelphia, by a "rustling noise." A person was at the foot of his bed. That person, a man, approached Walters, pointed a gun at him, and walked away. The police were contacted as soon as the intruder departed.
[ 292 Pa. Super. Page 281]
A radio dispatch was sent out by the police to search for a black male, 5 feet 8 inches tall, wearing a white raincoat and a cap. The man was possibly armed. He was last seen at 2008 Pine Street minutes ago. Within two or three minutes, the police came upon a black man, about 5 feet 8 inches tall wearing, a full-length tan overcoat and no hat. There was no one else on the street. It was now nearly 3:00 a. m.
The policeman called over the appellant to his car and asked him where he was going. Appellant said nothing. The officer asked him again and Sheridan said nothing. The officer then frisked the appellant and discovered a .32 caliber revolver on him. He then asked Sheridan if he had a permit to carry the gun. Sheridan did not answer. The policeman then continued his search of appellant and discovered two wallets, one bearing another person's name and the address 2008 Pine Street.
Sheridan presents two questions for our consideration. First, was the stop, frisk, search and seizure supported by adequate, reasonable grounds to so act? We hold that the police had reasonable grounds to stop and question the appellant. That questioning provided them with sufficient suspicious circumstances when coupled with their knowledge that the appellant may be armed to conduct a Terry search.*fn5 And, finally, evidence properly obtained from that search provided the policeman with sufficient probable cause to arrest the appellant.
Thus, our analysis is presented in a manner involving three levels of scrutiny. First, we focus upon the circumstances of the search to determine if "some intermediate response" was warranted. Commonwealth v. Daniels, 280 Pa. Super. 278, 421 A.2d 721 (1980).*fn6
[ 292 Pa. Super. Page 282]
In Commonwealth v. Lovette, 271 Pa. Super. 250, 253, 413 A.2d 390, 391 (1979), we said:
Appellant does not actively contend that the police officer was not permitted to stop and detain him briefly for identification. Nor does appellant assert that the police lacked probable cause to arrest him once the hat had been identified. Rather he contends that probable cause was lacking when the officer drove appellant to the burglarized house. Appellant identifies the officer's placing him in the patrol wagon as the time of the arrest, because he was subject to the control of the officer.
While we accept that appellant was required to accompany the officer for the one and one-half block trip, we disagree with his conclusion that in order to do so the police were required to have the same quantum of proof necessary to support a full-blown arrest. We are not faced with the aspects of such an arrest but, rather, with an identification procedure by which the officer could determine whether there was probable cause to arrest appellant and formally charge him with the criminal offenses. Instead of arresting appellant, the officer made an intermediate response by transporting appellant and the property a short distance for identification. Intermediate responses previously have been approved by the courts of this Commonwealth. Commonwealth v. LeSeuer, 252 Pa. Super. 498, 382 A.2d 127 (1977); Commonwealth v. Harper, 248 Pa. Super. 344, 375 A.2d 129 (1977), as guided by the Supreme Court decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). The officer in this case was reluctant to let appellant free to leave as neither appellant nor his companions had identified themselves; and the hat, as evidence, could easily be destroyed or concealed. At the same time, the officer was reluctant to arrest appellant on the basis of the information known to him at this time. Rather than force the officer to choose between such opposite responses, this court sanctions the use of an
[ 292 Pa. Super. Page 283]
intermediate response such as the one used in this case. See also Commonwealth v. Harper, supra. Obviously, once the hat had been identified, the officer had the requisite information to arrest appellant. Commonwealth v. Jones, 457 Pa. 423, 428, 322 A.2d 119 (1974). Accordingly, we find no error in the court's refusing to suppress evidence demonstrating that the hat had been stolen.
We indicated in Commonwealth v. Lovette, supra, that the police possessed a reasonable suspicion to stop, question and transport Lovette once they had seen him one and one-half blocks from the scene of the crime, identified that he wore a hat similar to that described to police and that he had muddied shoes, which all occurred at 3:15 p. m.
Here, the police discovered a black man, without a hat the actor was described to have been wearing, an overcoat, not a raincoat, different in color from that described to the police, three blocks from the scene at 3:00 a. m. We believe the facts herein justified the police in stopping the appellant. While there was little evidence to connect him with the crime, the fact that the encounter between the police and the appellant occurred at 3:00 a. m. when the Commonwealth argues few persons would be in or near the geographical area in which the crime occurred when coupled with the evidence police had, these facts were sufficient to legitimize the stop. See also: Commonwealth v. Kazior, 269 Pa. Super. 518, 525, 410 A.2d 822, 825 (1979).
The circumstances found in this case are not unusual. The record discloses that the police radioed a message that a black man wearing a white raincoat was reported to have committed a burglary at 2008 Pine Street, Philadelphia. The police discovered a man three blocks from the scene of the crime who was black and was wearing a tan overcoat. This encounter occurred at 3:00 a. m. The police stated that no one else was seen on the street. We believe that when the policeman viewed a man, generally fitting the description of the alleged criminal, seen on a street where no other persons were found at 3:00 a. m., that the policeman acted reasonably in stopping and questioning that man.
[ 292 Pa. Super. Page 284]
Once the policeman stopped and questioned the appellant, he had reason to frisk him because he refused to cooperate ...