No. 841 Philadelphia 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Delaware County at Nos. 4708, 4710, 4713 of 1979.
Brian S. Quinn, Havertown, for appellant.
Frank Hazel, District Attorney, Media, for Commonwealth, appellee.
Price, Watkins and Montgomery, JJ.
[ 308 Pa. Super. Page 476]
This case concerns the defendant-appellant's appeal from his conviction by a jury of burglary, theft by unlawful taking and criminal conspiracy as to three separate incidents. The defendant requested a Motion in Arrest of Judgment which was denied by the court below. The defendant was sentenced to a prison term of four and one-half to twelve (4 & 1/2 to 12) years.
On September 25, 1979, four private residences were burglarized in Radnor Township, Delaware County. The burglaries involved the theft of large amounts of personal property including television sets, jewelry, and silver flatware. A pry tool was used in each case to gain entry. Responding to the rash of burglaries, Sergeant Clement of the Lower Merion Township Police Department was assigned to the Villonova area to conduct surveillance for suspects in the burglaries.
At 6:00 P.M., on September 25, 1979, Sergeant Clement observed a white station wagon pass by his stakeout position. It was travelling slowly. The officer decided to follow the vehicle. In doing so he observed the defendant, a passenger in the vehicle, turn around and look at the
[ 308 Pa. Super. Page 477]
officer's vehicle. The defendant then made a shoving motion and crouched down in the station wagon. Clement then stopped the vehicle. While he was talking to its driver, Edmund Pienkos, who was standing outside the station wagon, he saw a large, portable television on its back seat. When Pienkos returned to the vehicle to search for his registration card the officer walked to the passenger side of the vehicle where he observed two packets of cigarettes (Kools and Salems) on the front seat and a green handled screw driver the tip of which had been cut into a "V-shape",*fn1 and a white cup containing silver coins and a gold necklace on the floor of the station wagon at the defendant's feet. Sergeant Clement then called for assistance. The "back-up" officer noticed several screwdrivers in the vehicle. Defendant and Pienkos were then arrested. Pienkos made a statement to the police. Defendant made no statement.
It should also be noted that Pienkos gave the officer defendant's address while they were talking. However, defendant gave the officer an address different than the one Pienkos gave. The officers also noticed a pillow case protruding from under the vehicle's seat. It was found to contain items taken during the burglaries. In addition Salem cigarette butts were found at the scene of three of the burglaries.
Defendant's first contention is that he was denied effective assistance of counsel at his trial. He claims that his trial counsel was ineffective because he failed to file a suppression motion demanding that the evidence found in the vehicle (the stolen goods) be suppressed as the product of an unlawful search and seizure. We do not agree as such a motion would have been meritless. The arresting officer had observed a slow-moving vehicle in a residential ...