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COMMONWEALTH PENNSYLVANIA v. RICHARD MILYAK A/K/A RICHARD KAUFMAN (06/04/85)

decided: June 4, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
RICHARD MILYAK A/K/A RICHARD KAUFMAN, APPELLANT



Appeal from the Order of the Superior Court of Pennsylvania dated April 19, 1984 at No. 224 Pittsburgh, 1982, affirming the Judgment of Sentence imposed by the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, at No. CC8101485, dated Feb. 11, 1982. Pa. Superior Ct. ,A.2d (1984).

COUNSEL

Vincent R. Baginski, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Kemal Alexander Mericli, Asst. Dist. Atty., Pittsburgh, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Zappala, J., joins this Majority Opinion and files a Concurring Opinion.

Author: Flaherty

[ 508 Pa. Page 4]

OPINION OF THE COURT

This is an appeal from the order of the Superior Court*fn1 affirming the judgment of sentence of guilty of burglary, receiving stolen goods and conspiracy entered against appellant following a jury trial. We granted allowance of appeal limited to a review of the constitutional validity of a warrantless search of a van.

On February 3, 1981, shortly after 12:00 midnight, police officers of the North Versailles Police Department responded to a report that the back door of a local hardware store was open. Investigating police observed pry marks evident

[ 508 Pa. Page 5]

    on the door jamb and determined that several televisions and microwave ovens had been stolen from the store. A witness who observed suspicious activity near the back door earlier in the evening gave the police a description of the vehicle observed, a 1975 gold Dodge passenger-type van, with sliding doors.

Later that evening, at approximately 2:30 a.m., one of the responding officers observed a gold van matching the witness' description pull into the parking lot of a restaurant less than a mile from the hardware store. The officer observed the occupants enter the restaurant and called for backup, whereupon the police examined the interior of the van which was described as having many windows. The police officers, with the aid of a flashlight, looked through the windows of the van and observed a television antenna, a crowbar and a television set with a tag attached indicating that the set was from the hardware store. On these observations, the persons who had occupied the vehicle, including the appellant,*fn2 were arrested inside the restaurant and placed in a police vehicle. The police then opened the van, which was unlocked, and removed the items mentioned and the van was subsequently towed to the police station.

The Superior Court held that the warrantless seizure of the evidence from the interior of the van was valid under the Fourth Amendment of the United States Constitution,*fn3 citing Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) and Commonwealth v. Lewis, 442 Pa. 98, 275 A.2d 51 (1971) permitting ...


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