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COMMONWEALTH PENNSYLVANIA v. PATRICK NEARY (07/17/86)

filed: July 17, 1986.

COMMONWEALTH OF PENNSYLVANIA,
v.
PATRICK NEARY, APPELLANT



Appeal from Judgment of Sentence October 22, 1985, in the Court of Common Pleas of Monroe County, Criminal No. 869-1981.

COUNSEL

Janet J. Schoen, Assistant Public Defender, Stroudsburg, for appellant.

John B. Dunn, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.

Cirillo, President Judge, and Wieand, and Olszewski, JJ.

Author: Olszewski

[ 355 Pa. Super. Page 95]

This matter comes before this Court on appeal from a judgment of sentence for robbery and criminal conspiracy to commit robbery. The relevant events occurred on December 22, 1981 at approximately 1:40 p.m., when two

[ 355 Pa. Super. Page 96]

    masked individuals, one of whom was armed,*fn1 robbed the Bushkill Branch of the First Eastern Bank located on Route 209 in Monroe County, Pennsylvania. Secluded within the sack of money taken by the robbers was a bait pack consisting of marked money and false currency containing cartridges of red dye and tear gas designed to explode when opened. A bank guard witnessed the robbers leaving the scene in a green Cadillac bearing a tan and black New Jersey license plate fastened to the rear of the vehicle in an inverted position. This witness immediately reported the description of the vehicle to police and indicated that it was traveling south on Route 209 towards Marshall's Creek. A second witness, who was proceeding in the same direction as the alleged get-away car, testified that he saw a green Cadillac exit the bank parking lot and within one-half mile he noticed red smoke pouring from the car's interior. He immediately thereafter smelled the odor of tear gas as the two occupants hung their heads from the car windows. This witness also phoned the state police and provided them with a description of the car and its direction of travel. A third witness, who was walking in the area of the bank at the time of the robbers' escape, not only told the state police that he observed the scenario staged immediately outside the bank, but also was able to describe the driver of the vehicle who was later identified as appellant, Patrick J. Neary.

In response to a police broadcast summarizing the information presented by these witnesses, local police sighted appellant's vehicle and notified the state police who were in pursuit of the robbers. Within a short distance of the area in which the vehicle was last seen, the state police observed the Cadillac swerve out of control in what appeared to be an attempt to avoid apprehension. Consequently, the officers detained appellant's vehicle. As the alleged robbers were being removed from the car, one state policeman testified that he observed an unzipped, dye-stained gym bag on the

[ 355 Pa. Super. Page 97]

    floor of the car containing such items as clothing and money. Upon searching the inside of the bag, the officer confiscated one or more guns. Appellant and his passengers were then arrested and charged with robbery, conspiracy and crimes committed with firearms. An inventory search of the car's interior later was conducted at the state police barracks in Swiftwater, Pennsylvania.

Appellant's motion to suppress evidence seized during both searches was denied by the lower court on March 18, 1982. Following a two-day jury trial in May of 1982, appellant was convicted of robbery and conspiracy to commit robbery; however, a new trial was ordered due to prejudicial statements made by the prosecutor during closing arguments. The Superior Court affirmed the judgment granting appellant a new trial. In September of 1984, appellant again was convicted of these charges and subsequently filed motions in arrest of judgment and for a new trial. These motions were denied on August 7, 1985. Thereafter, appellant was sentenced to ten to twenty years imprisonment on the robbery conviction and a consecutive sentence of five to ten years on the conspiracy conviction. In response to appellant's motion for reconsideration of sentence, the lower court resentenced appellant on the conspiracy conviction to a consecutive term of two and one-half to five years incarceration. Appeal was taken to this Court on October 23, 1985.

Appellant now contends that the lower court erred: (1) in failing to suppress certain evidence obtained during the search of the car since no probable cause existed for the police to stop the vehicle; (2) in refusing to grant appellant's request for a mistrial when the jury viewed him being escorted unhandcuffed by uniformed guards to the courthouse; (3) in refusing to grant his demurrer to the conspiracy charge; (4) in refusing to order the alleged co-conspirator to answer questions posed by appellant's counsel on direct examination; (5) in not recusing itself because of alleged bias against appellant; (6) in refusing to grant appellant a continuance when his witness failed to appear;

[ 355 Pa. Super. Page 98]

    and (7) in considering certain convictions which were challenged by appellant in ordering sentence. We will address these arguments seriatim.

Upon review of appellant's first allegation that his Fourth Amendment rights were violated when the police stopped and searched his vehicle, we are constrained to disagree. It is generally well accepted that when individuals proceeding in an automobile are forced to interrupt their travel at police direction, such action clearly amounts to a seizure of those individuals and basis for that stop must meet Fourth Amendment standards. Commonwealth v. Murray, 460 Pa. 53, 331 A.2d 414 (1975). Such seizure, however, will not be unreasonable under the Fourth Amendment where probable cause exists at the time of that seizure. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

Probable cause exists where "the facts and circumstances within the arresting officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 555 (1925).

In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879, 1890 (1949).

Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327, 333 (1959).

We believe that under the facts and circumstances here the police had probable cause to believe that the occupants of the vehicle had robbed the First Eastern Bank in Bushkill, Pennsylvania. Our review of the record indicates that when the state policemen approached appellant's car, they not only were aware that an armed bank robbery

[ 355 Pa. Super. Page 99]

    had occurred but they were also provided with a description of the robbers' vehicle and a direction of their travels. In addition, the state troopers were informed that a local policeman had sighted a vehicle similar to the one described via a police broadcast within a short distance of the area in which the robbers were apprehended. Moreover, the swerving movement of the vehicle provided further indication that the occupants were attempting to avoid apprehension. Consequently, we believe that the seizure was supported by sufficient probable cause.

Appellant next contends that the seizure of his dyestained gym bag by one of the state policemen was a violation of his Fourth Amendment rights. We disagree. Our Court has previously held that where police have a right to be in the position of observation they can lawfully seize objects in plain view provided, however, that the incriminating character of the evidence is apparent. Commonwealth v. Yacoubian, 339 Pa. Super. 413, 489 A.2d 228 (1985). Since the officers in the instant case were aware that the dye pack had exploded as the robbers were escaping from the scene, we therefore must conclude that the seizure of ...


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