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COMMONWEALTH PENNSYLVANIA v. DENNIS O'NEAL (05/31/83)

submitted: May 31, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
DENNIS O'NEAL, APPELLANT



No. 2971 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 2904-2906 April, 1980.

COUNSEL

Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

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

Rowley, Wieand and Cirillo, JJ.

Author: Wieand

[ 321 Pa. Super. Page 325]

Dennis O'Neal was convicted of robbery,*fn1 theft by unlawful taking*fn2 and possession of an offensive weapon*fn3 following a bench trial before the Honorable Leonard A. Ivanoski. On direct appeal from the judgment of sentence, O'Neal argues that the stolen money, the gun used in the robbery and other physical evidence, as well as his on-the-scene identification by the victim, should have been suppressed as products of an unlawful arrest. There is no merit in this contention; and, therefore, we affirm the judgment of sentence.

Officer Francis Regan, while on routine patrol at 6:10 a.m. on April 11, 1980, was approached by two persons who had emerged from the WaWa store at 3925 Walnut Street in Philadelphia. One of them said that the store had just been robbed. The other said that the robber was wearing a white cap, was armed with a shotgun, and had run north on Fortieth Street. He suggested that Regan could catch him if he hurried. Regan observed a man running north on Fortieth Street in the vicinity of Market Street. The man was uncovered but was the only person on the street at that hour. Regan pursued, with dome light flashing but without siren, and observed the running male turn west on to Filbert Street. When Regan also turned into Filbert Street, he found that the person being pursued had stopped, with hands up, and "paper money flying in the air like snow." Regan placed the man under arrest, recovered $98 in paper

[ 321 Pa. Super. Page 326]

    currency, and took the man back to the store where he was immediately identified by the store clerk as the robber. That man was Dennis O'Neal. Also identified by the clerk was a peanut butter Tastykake which was in appellant's possession at the time of his arrest and which had been purchased by the robber just prior to the holdup. Officer Charles Mullen, who arrived as backup in response to a call for assistance from Regan, searched the area in which appellant had been arrested and recovered from a vacant lot on Filbert Street a long barreled pistol, referred to during trial as a sawed-off shotgun. It was identified by the victim as being similar to the gun used in the holdup. In the pocket of appellant's dark blue jacket was found a tan cap.

Appellant cannot complain that the police seized currency and a gun which he had abandoned. In Commonwealth v. Williams, 269 Pa. Super. 544, 410 A.2d 835 (1979), we said:

The issue is not abandonment in the strict property-right sense, but whether appellant voluntarily discarded, left behind, or otherwise relinquished his interest in the property so that he could no longer retain a reasonable expectation of privacy with regard to it . . . . Abandoned property may be obtained and used for evidentiary purposes by the police. The evidence must be suppressed only if the abandonment has been coerced by unlawful police action.

Id., 269 Pa. Superior Ct. at 547, 410 A.2d at 836 (citations omitted). See also: Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977); Commonwealth v. Hines, 230 Pa. Super. 290, 326 A.2d 485 (1974).

Here, there was no unlawful police conduct. Assuming, for purposes of argument, that Regan did not have probable cause to arrest the only person running on Fortieth Street after he learned of the robbery, he could nevertheless approach him for purposes of investigating appellant's possible involvement. "[T]he Fourth Amendment does not require a policeman ...


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