No. 02876 Philadelphia 1983, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 83-06-1642-1643.
Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Donald Bronstein, Assistant Public Defender, Philadelphia, for appellee.
Wieand, Olszewski and Popovich, JJ. Wieand, J., noted his dissent.
[ 334 Pa. Super. Page 371]
This is an appeal by the Commonwealth from an order of the Court of Common Pleas of Philadelphia County granting a motion to suppress evidence in favor of appellee, Earl Carter. We affirm.
The sole issue on appeal is whether the lower court erred in granting the motion to suppress evidence. This court has held that the Commonwealth may appeal from an order suppressing evidence if the record shows that the order terminates or substantially handicaps the prosecution. Commonwealth v. Lapia, 311 Pa. Super. 264, 457 A.2d 877 (1983). The lower court's decision may be upheld only if the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings. Commonwealth v. Brown, 473 Pa. 562, 375 A.2d 1260 (1977).
On June 8, 1983, at approximately 4:00 a.m., Officer Schu observed appellee walking northbound on Watts Street carrying a large bundle. He intercepted him on Second Street where he was stopped by a trash dumpster. Appellee was attempting to stuff his bundle into a trash bag. Officer Schu noticed "a large mantelpiece-type clock protruding
[ 334 Pa. Super. Page 372]
from the bag." (S.N.T. 6) After noticing the clock, Officer Schu "walked a little closer and peered into the top of the bag" (S.N.T. 7) observing a clock, radio cassette player and a camera inside. Officer Schu then asked appellee what he was doing whereupon the latter answered that he was "trashpicking". Officer Schu then removed the items from the bag and examined them closely. Next, Officer Schu frisked appellee and found on his person a walkman-type radio, two watches, a change pouch with approximately $44.00 inside and miscellaneous cash. He handcuffed appellee and arranged for his transport to the police station. Officer Schu then returned to the area where he had first observed appellee and noticed an open window with items strewn under the window. Through it, he observed that the room "appeared to be ransacked." (S.N.T. 10) Officer Schu then rang the doorbell to awaken the residents who subsequently identified the confiscated items as their own.
The lower court held that "the police officer lacked reasonable, articulable grounds to support a suspicion that criminal activity was afoot at the time that he observed and stopped the defendant." Since the stop was concluded to have been unlawful, the lower court suppressed the fruits thereof.
A policeman may legally stop a person and question him.
But he may not without a warrant restrain that person from walking away and "search" his clothing, unless he has "probable cause" to arrest that person or he observes such unusual and suspicious conduct on the part of the person who is stopped and searched that the policeman may reasonably conclude that criminal activity ...