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COMMONWEALTH PENNSYLVANIA v. PURNELL WHELTON (03/22/83)

submitted: March 22, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
PURNELL WHELTON, APPELLANT



No. 2429 Philadelphia 1980, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 80-007684, 80-3-330.

COUNSEL

Joseph V. Furlong, Jr., Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Hester, Johnson and Popovich, JJ.

Author: Popovich

[ 319 Pa. Super. Page 44]

Appellant, Purnell Whelton, was convicted in the Municipal Court of Philadelphia of Carrying a Firearm Without a License (18 Pa.C.S.A. § 6106) and Carrying a Firearm on a Public Street or Place in Philadelphia (18 Pa.C.S.A. § 6108).*fn1 Sentence consisted of a $50.00 fine for each charge, as well as the payment of $10.00 to the Victims' Compensation Fund. A timely appeal, captioned a "Petition For Writ Of Certiorari," was filed with the Court of Common Pleas of Philadelphia County, Criminal Division.*fn2 After a hearing

[ 319 Pa. Super. Page 45]

    before the Hon. Charles L. Durham, appellant's Petition was denied. This appeal followed. We affirm.

The facts, viewed in the light most favorable to the verdict winner, consist of the following: At approximately 11:30 a.m. on the 5th of March, 1980, Officer John Clinkscale, of the Philadelphia police, received "flash information" over his car radio that a pocketbook snatching had just occurred at 9th and Montgomery Avenues. The culprit was identified as a Negro male, 20 to 30 years old, 5 feet 6 inches tall, 150 to 160 pounds, black hair, wearing a 3/4 length gray coat, sneakers and clean shaven with a scar on his chin. (N.T. 6 & 8)

Officer Clinkscale, being in the vicinity, began to survey the area for about 15 to 20 minutes before observing the appellant on the corner of 9th and Columbia Avenues, next to a bus stop along with two elderly people and a female, one block from the scene of the reported theft. Appellant matched the description given over the radio. (N.T. 11-12) As the officer approached the appellant on 9th Avenue, he said, "Sir, I'm stopping you to check about a robbery that happened up the street, a pocketbook snatch." (N.T. 18) While talking to appellant, the officer "patted him down for [his, i.e., the officer's] protection." (N.T. 19) During the pat down, the officer felt a hard object inside appellant's left coat pocket. When the object was removed, it proved to be a .25 caliber automatic pistol, two and a quarter inches in length, with four live rounds in the clip and one in the chamber. At this point, the officer took the appellant back to 9th and Montgomery for an on-the-scene identification. However, this could not be accomplished since the witness had already been taken to "East Detectives." Although the appellant was not identified as the culprit, and, in fact, " turned out not to be the robbery perpetrator," (Emphasis added) (Lower Court Opinion at 2), he was, nevertheless, "locked up for carrying a weapon." (N.T. 7)

Prior to the close of the Commonwealth's case, counsel introduced evidence that, as of the date of the incident, a check of the records indicated that appellant was not issued

[ 319 Pa. Super. Page 46]

    a valid license, pursuant to either Section 6109(b) or Section 6106(c) of the Crimes Code, to carry a firearm. (N.T. 21)

At the Municipal Court hearing, appellant took the stand and testified that on the day and time in question he had just left his daughter at his mother's house. After leaving, he was in the process of cutting across a lot to catch a bus. "While running across the lot [he] noticed this object on the ground. [He] didn't want to pick it up but [he] did." (N.T. 22) It turned out to be the weapon in issue here. He went on to testify that he had all the intentions of turning the weapon over to the police department as soon as possible, but, because of the manner in which Officer Clinkscale confronted him concerning the reported robbery, i.e., with his hand on his pistol, appellant "was more or less scared" and did not surrender the weapon prior to the search.

The trier of fact, after hearing all of the evidence, denied appellant's motion to suppress and adjudged him guilty of the two weapon offenses. These rulings were affirmed by the Court of Common Pleas of Philadelphia County.

On appeal, appellant challenges the denial of his motion to suppress and the legality of the sentence imposed.

In examining appellant's argument concerning the propriety of the suppression ruling, we utilize the ...


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