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COMMONWEALTH PENNSYLVANIA v. SAMUEL BENNIE (05/01/86)

filed: May 1, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
SAMUEL BENNIE, APPELLANT



Appeal from Judgment of Sentence dated May 8, 1985, of the Philadelphia Court of Common Pleas, Criminal Division C.P. March Term, 1984, Nos. 1311-14

COUNSEL

Mary McNeil Zell, Philadelphia, for appellant.

Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Olszewski, Tamilia and Kelly, JJ.

Author: Kelly

[ 352 Pa. Super. Page 561]

Following a jury trial, defendant was found guilty of robbery*fn1 and criminal conspiracy.*fn2 Post-trial motions were denied, and he was sentenced to serve a term of imprisonment of 3 to 10 years for the robbery conviction and 1 1/2 to 10 years on the conspiracy count, to be served concurrently. Defendant now appeals.

The evidence presented by the Commonwealth showed that on January 29, 1984, the victims, Father Logan, an elderly member of the clergy, and his wife, were accosted and robbed as they attempted to enter their South Philadelphia home. While the co-defendant pushed the clergyman to the ground and took his wallet, the defendant engaged in a face-to-face struggle with Mrs. Logan, who was trying to keep the assailants out of her home. The two were apparently discouraged from entering the home by the cries for help of Mrs. Logan. The following evening, on January 30, 1984, two Philadelphia police officers stopped an automobile driven by the defendant, with co-defendant as passenger, when they went through a stop sign. As the officers approached the automobile, one of them observed the co-defendant take something from his pocket and place it under the front seat. After ordering the two suspects out of the car, the officer found a wallet under the seat, opened it, and discovered that it contained credit cards of a Father Logan. The suspects were taken to a police station where the Logans positively identified the co-defendant, but failed to identify appellant. Appellant was released. Two days later, he visited the Logan home, purportedly to inform Mrs.

[ 352 Pa. Super. Page 562]

Logan that she was mistaken in her identification of the co-defendant. Before the preliminary hearing for the co-defendant, held a few weeks after the incident, Mrs. Logan identified the defendant from a photographic display of nine black males. Defendant was then arrested, and the case against him was consolidated with the case against the co-defendant.

On appeal, defendant alleges that (1) the trial court erred in denying the motion to suppress the wallet, which was seized in the search of the automobile, and (2) trial counsel was ineffective. We find neither of these two arguments to be persuasive. We, therefore, affirm.

Defendant first challenges the validity of the search of the wallet, which was found under the passenger's seat of the car which he was driving at the time of his arrest.*fn3 Appellant does not allege that the automobile was improperly stopped pursuant to a traffic violation, nor does he challenge the authority of the police officer to search under the seat of the automobile for the unknown object which the officer had seen the co-defendant hurriedly stow under the seat as the car was pulled over. See Commonwealth v. Baker, 347 Pa. Super. 213, 500 A.2d 483 (1985). Defendant contends that, once the officer discovered that the hidden object was not a weapon or an illegal substance, he could not make a search of the wallet's contents.

[ 352 Pa. Super. Page 563]

While searches and seizures conducted outside the judicial process, without prior approval by a magistrate, are generally unreasonable under the Fourth Amendment, Katz v. U.S., 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967), there is an established departure from the warrant requirement for certain automobile searches based on the inherent mobility of vehicles, with the consequent practical problems in obtaining a warrant prior to infringing a legitimate expectation of privacy, and on the "diminished expectation of privacy which is accorded automobiles because of their open construction, their function, and their subjection to a myriad of state regulations." Commonwealth v. Timko, 491 Pa. 32, 38, 417 A.2d 620, 623, 417 A.2d ...


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