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COMMONWEALTH PENNSYLVANIA v. CHARLES M. MACK (04/29/83)

filed: April 29, 1983.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
CHARLES M. MACK



No. 1331 PHILA. 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal at No. 81-01-214-16.

COUNSEL

Sarah Vandenbraak, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

John W. Packel, Chief Appeals, Assistant Public Defender, Philadelphia, for appellee.

Spaeth, Rowley and Van der Voort, JJ.

Author: Spaeth

[ 313 Pa. Super. Page 374]

This is an appeal by the Commonwealth from an order suppressing evidence seized incident to an arrest. The lower court held that the police officer had no probable cause to make the arrest. However, we think the officer did, and therefore reverse.

We must first decide whether the lower court's order is appealable. Recently we held that "[w]hen confronted with a Commonwealth appeal from an order suppressing evidence, we must determine for ourselves whether the order is appealable -- whether it terminates or substantially handicaps the prosecution; and we must make that determination on the basis of the record, and on that basis alone." Commonwealth v. Lapia, 311 Pa. Super. 264, 277, 457 A.2d 877, 884 (1983) (en banc). Here, the charge is burglary and related offenses, including theft by unlawful taking and disposition and receiving stolen property. The evidence

[ 313 Pa. Super. Page 375]

    suppressed is a stolen typewriter. Since without this evidence the Commonwealth will be unable to prove that the defendant possessed stolen property, the suppression order will terminate the prosecution. The order is therefore appealable.

The lower court opens its opinion with the following "Finding of Facts:"

Officer William Hinkle testified that on November 18th, 1980, at approximately 1:00 A.M., he drove past the defendant and another male at 12th and Callowhill Streets, Philadelphia, Pennsylvania (N.T., p. 5). He stated that he observed the two males during a heavy rain carrying an electric typewriter inside a plastic trash bag (N.T., p. 5). The officer testified that he asked the defendant and the other male, "Who belonged to the typewriter?" The officer added that both males denied owning the typewriter (N.T., p. 5). The officer added that he asked them, "Where they got the typewriter" and they stated to him that, "They found it in the trash", pointing across the street to a restaurant where trash bags were sitting out. (N.T., p. 6).

The officer stated that since neither male could produce proof of ownership for the typewriter, he called for a patrol wagon and took the two males and the typewriter to Central Detectives (N.T., p. 6). The officer added that before he arrested the two males, he made a search of the area for burglarized properties and found none (N.T., p. 6). He further stated that he had no reports of a burglary at the time he ...


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