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COMMONWEALTH PENNSYLVANIA v. KEVIN OTTO (04/03/85)

submitted: April 3, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
KEVIN OTTO, APPELLANT



Appeal from Judgment of Sentence November 1, 1982 in the Court of Common Pleas of Philadelphia County Criminal No. 81-06-3105-3106.

COUNSEL

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

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

Cavanaugh, Olszewski and Hoffman, JJ.

Author: Olszewski

[ 343 Pa. Super. Page 459]

Appellant seeks discharge of his convictions for attempted burglary and criminal trespass. He argues (1) that the lower court erred in denying his motion to supress the policeman's observation of blood on his (appellant's) hand; and (2) that the evidence was insufficient to sustain appellant's convictions. After carefully reviewing the record and the briefs in this case, we reject appellant's contentions.

The record of appellant's suppression hearing establishes the following facts.*fn1 At approximately 1:05 a.m., May 14, 1981, policeman Paul Busillo received a radio call of a broken window at a drugstore in the Haregate Shopping Center. Minutes later he arrived at the shopping center and observed two men three to four feet from the broken window and facing toward it. Appellant was identified in court as one of these men.

The officer watched the men turn toward his car. They then walked away from the window and in front of his car. The officer called the men to him and asked them about the window. Both men responded that they had seen the window but that they didn't know anything about it. At this point, the men were standing seventy-five to one hundred feet from the broken window. The officer said, "Let's go back to the window and check it out." Appellant and the other man walked back to the window. The officer, with

[ 343 Pa. Super. Page 460]

    one hand on his night stick and the other on his gun, followed them.*fn2

The officer testified that he looked at the broken window and saw blood on the glass. He then observed blood on appellant's hand. At that point, the officer placed appellant and the other man in custody.

Arguing that he had been detained when the officer walked him to the broken window, appellant moved to suppress the officer's observations of his (appellant's) bloody hand. The lower court denied the motion. Appellant was tried and convicted of attempted burglary and criminal trespass. His post-verdict motions denied, appellant was sentenced to two to four years imprisonment. This appeal followed.

We agree with appellant that the officer's actions, causing appellant to walk with him some 75 or 100 feet back to the broken window, constituted a "stop" implicating Fourth Amendment considerations. See Commonwealth v. Jones, 474 Pa. 364, 372-373, 378 A.2d 835, 840 (1977), cert. denied, 435 U.S. 947 (1978) (asking what "a reasonable man, innocent of any crime, would have thought had he been in the defendant's shoes"). Appellant contends that the officer, by directing appellant's actions, effected an illegal arrest. The lower court, rejecting that contention, concluded that the officer observed the appellant's bloody hand in the course of a legal investigatory stop. For the reasons below, we find that the lower court properly denied appellant's motion.

To test the legality of a stop absent probable cause to arrest, we ask "whether the officer's action was justified at its inception and whether it was reasonably related in scope to the circumstances that justified the interference in the first place." Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). The central inquiry, we must emphasize, is the reasonableness under all the circumstances

[ 343 Pa. Super. Page 461]

    of this particular governmental invasion of appellant's personal security. Id. at 19, 88 S.Ct. at 1878.

In the instant case, the officer responding to a late night report of a broken window found two men standing before the four to five foot break. The men looked toward the officer, then walked away from the broken window. At that point, the officer could reasonably have suspected that criminal activity was afoot. See Commonwealth v. ...


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