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filed: October 23, 1986.


Appeal from the November 4, 1985 Order of the Court of Common Pleas of Philadelphia granting appellees' motion to suppress, at Nos. 436-441 of the april Session, 1985.


Susan V. Kahn, Assistant District Attorney, Philadelphia, for Com., appellant.

Donald Bronstein, Philadelphia, for appellees.

Cirillo, President Judge, and Wickersham and Kelly, JJ.

Author: Kelly

[ 358 Pa. Super. Page 122]

This case involves an appeal by the Commonwealth of an order granting the appellees' motion to suppress. The trial court found that the appellees, Joseph Crump and Keith White, had been arrested without probable cause and that all physical evidence and statements gained as a result of the illegal arrest must be suppressed. Upon review, we find that the appellees were subjected to a reasonable investigatory detention and then properly arrested when a brief investigation led to the discovery of additional facts which established probable cause for a valid arrest. Accordingly, we reverse the suppression order.

[ 358 Pa. Super. Page 123]

It is well settled that when a suppression motion is granted, and when the Commonwealth asserts in good faith that the granting of the motion substantially impairs or effectively terminates the prosecution because of lack of evidence, the Commonwealth has the right to appeal the suppression order. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Commonwealth v. Chandler, 505 Pa. 113, 477 A.2d 851 (1984). The suppression order in the instant case meets the standard for appealability in that the Commonwealth has alleged in good faith and it is readily apparent from the record that suppression of the physical evidence and statements would substantially impair the prosecution of the appellees.

Our scope of review is limited primarily to questions of law. See Commonwealth v. Swint, 256 Pa. Super. 169, 389 A.2d 654 (1978); Commonwealth v. Chinea, 246 Pa. Super. 494, 371 A.2d 944 (1977). We are bound by the suppression court's findings of fact, if those findings are supported by the record. Commonwealth v. James, 506 Pa. 526, 486 A.2d 376 (1985); Commonwealth v. Brown, 341 Pa. Super. 138, 491 A.2d 189 (1985). In determining whether the findings of fact are supported by the record, we are to consider only the evidence of the appellees and so much of the evidence of the appellant which, as read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Hamlin, 503 Pa. 210, 215-216, 469 A.2d 137, 139 (1983). It is for the suppression court as the trier of fact, rather than the reviewing court, to determine credibility. Commonwealth v. Bonasorte, 337 Pa. Super. 332, 486 A.2d 1361 (1984).

However, we are "not bound by findings wholly lacking in evidence." Hamlin, 503 Pa. at 215, 469 A.2d at 139, citing Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977). Nor are we bound by the suppression court's conclusions of law. Commonwealth v. Lark, 505 Pa. 126, 477 A.2d 857 (1984); Commonwealth v. Scatena, 332 Pa. Super. 415, 481 A.2d 855 (1984).

[ 358 Pa. Super. Page 124]

A suppression hearing was conducted before the Honorable Albert W. Sheppard on November 4, 1985. The sole witness to testify at this hearing was Officer David Marmien. At the close of the hearing, Judge Sheppard specifically stated that he determined Officer Marmien "to be a credible officer." (N.T. 11/4/85 at 24-27). On February 27, 1986, Judge Sheppard filed an opinion in which he summarized the salient facts as follows:

On February 28, 1985, at 2:30 in the afternoon, Philadelphia Police Officers Marmien and Derein received a radio assignment to investigate males removing property from 2138 West Columbia Avenue (N.T. 8-9, 24). Within two minutes, the officers arrived at a vacant lot at 22nd and Nicholas Streets -- a position one-half block south and one-half block west of the subject location -- where they observed the two defendants walking west and carrying four, 4 ft. by 8 ft., formica sheets (N.T. 9-11).

The officers pulled their cars to the curb on 22nd Street, exited the vehicles, approached and stopped the males in the middle of 22nd Street (N.T. 12). They asked the defendants where they had gotten the sheets, and defendants replied that they were contractors and had bought the sheets in the 22 (twenty-two) hundred block of Columbia Avenue (N.T. 13-14).

At that point the officers placed defendants in one of the police cars (N.T. 14) in the custody of Officer Derein (N.T. 21), while Officer Marmien went to investigate the subject premises (N.T. 14-15). Some time later, when Officer Marmien returned to the police vehicles, he encountered a female who identified herself as the property owner (N.T. 16), and who identified the formica sheeting as belonging to her (N.T. 17).

On this record, this Court determined that, in fact, the defendants were arrested and that probable cause for that arrest did not exist.

Suppression Court Opinion at 2-3.

Upon review of the transcript of the suppression hearing, and in light of the suppression ...

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