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COMMONWEALTH PENNSYLVANIA v. ARTHUR R. PINE (01/27/88)

decided: January 27, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ARTHUR R. PINE



Appeal from the Order of the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 86-04-3366-67.

COUNSEL

Hugh J. Burns, Assistant District Attorney, Philadelphia, for Com., appellant.

Owen Larrabee, Philadelphia, for appellee.

Cavanaugh, Rowley and Montemuro, JJ.

Author: Rowley

[ 370 Pa. Super. Page 412]

This is an appeal by the Commonwealth of Pennsylvania from an order granting a motion to suppress evidence that was filed by appellee Arthur Pine, who was charged with first degree felony burglary, theft, and criminal trespass after he allegedly stole a television set.*fn1 The order effectively suppresses all evidence connecting appellee with the theft. There are two issues in this appeal: 1) whether the identification of appellee by a Philadelphia police officer must be suppressed as the fruit of an unlawful stop and detention of appellee; and 2) whether the serial number of the television set that appellee was carrying when he was stopped by the police officer must be suppressed as the fruit of an unlawful search. We conclude that neither the identification of appellee nor the serial number should be suppressed. Therefore, we reverse the order of the suppression court.

It is settled law that when the Commonwealth asserts in good faith that the granting of a suppression motion substantially impairs or effectively terminates the prosecution because of a lack of evidence, the Commonwealth has the right to appeal the suppression order. Commonwealth v. Dugger, 506 Pa. 537, 546-47, 486 A.2d 382, 386 (1985); Commonwealth v. White, 358 Pa. Super. 120, 123, 516 A.2d 1211, 1212 (1986). In the present case the Commonwealth has certified that the suppression order of

[ 370 Pa. Super. Page 413]

November 25, 1986, terminates or substantially handicaps its case. The Commonwealth's certification is sufficient, in and of itself, to authorize this appeal. Commonwealth v. Dugger, 506 Pa. at 545, 486 A.2d at 386. Accordingly, we turn to the merits of the case.

The pertinent facts of the case are as follows: On March 4, 1986, at approximately 1:40 a.m., Officer Mark Bugieda was patrolling the area of 200 West York Street, Philadelphia, in his marked police car when he observed appellee sitting on a step at Fourth and York. As the officer approached appellee, appellee looked in the officer's direction, stood up, and walked away. The officer resumed his patrol and, moments later, returned to York and Fourth. Again, he saw appellee sitting on the step. Again, appellee stood and walked away. For a few minutes Officer Bugieda continued to watch appellee, who walked away, looked back at the officer, and kept walking.

Ten or fifteen minutes later, the officer again saw appellee. This time he was walking east on York Street and was carrying a television set on his shoulder. On the basis of appellee's actions and the officer's personal knowledge of numerous burglaries in the area, Officer Bugieda stopped appellee and asked him what he was doing. Appellee replied that he had just come from his grandmother's house at 317 West Lehigh Avenue and that he was taking the television set home to repair it. The officer asked appellee for identification both for himself and for the television set. Appellee said that he had identification for himself but not for the set. The officer then checked his "Part One Sheet," which lists thefts or burglaries reported from the previous night or day, but found no listing for a television set. Officer Bugieda asked appellee where he was going and appellee replied, "Home." Appellee then "allegedly said, 'You can take me back to 317 Lehigh and ask my grandmother.'" Trial Court Opinion at 2; see also N.T. at 6.*fn2 The officer placed appellee and the television set into the

[ 370 Pa. Super. Page 414]

    police car, drove to 317 West Lehigh Avenue, knocked on the door, and received no response. The officer then attempted to check the television set through the police computer that keeps track of lost or stolen goods, but the computer was inoperative. Officer Bugieda recorded the serial number that was ...


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