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COMMONWEALTH PENNSYLVANIA v. JOSEPH M. LAGANA (02/25/88)

decided: February 25, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
JOSEPH M. LAGANA, APPELLEE



Appeal from the Order of The Superior Court of Pennsylvania Entered August 25, 1986 at No. 00460 Philadelphia 1982 Affirming the Order of the Court of Common Pleas-Criminal, of Philadelphia County at No. 847, Entered July Term 1981. 356 Pa. Super 132, Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ.

Author: Larsen

[ 517 Pa. Page 373]

OPINION OF THE COURT

The issue presented in this appeal is the admissibility of evidence seized by a police officer without a warrant during an investigatory stop and frisk prompted by a police radio call which contained information received from an unidentified source.

The pertinent facts from the record are as follows. On May 11, 1981 at 7:30 p.m. Officer Gelovich of the Philadelphia Police Department received a police radio broadcast that there was a man with a gun at the corner of Ninth and Wharton Streets in Philadelphia. The man was described as a white male, twenty to twenty-five years of age and

[ 517 Pa. Page 374]

    wearing a yellow raincoat. Officer Gelovich arrived at Ninth and Wharton Streets within two minutes of the radio call and observed a man who fit this description looking through binoculars at a restaurant which was approximately thirty feet away. It was raining heavily and there were twenty to thirty people in the area, none of whom were wearing a yellow raincoat or otherwise fit the description of the suspect.

The police officer jumped out of his car, approached the man who was later identified as appellee Joseph Lagana, immediately frisked him and discovered a thirty-two caliber revolver in the waistband of his pants. Officer Gelovich arrested appellee on charges of illegal possession of a firearm.*fn1 At appellee's feet the officer saw a black camera case, a brown case and a small purple pouch.*fn2 On June 9, 1981 appellee was also charged with burglary after the various items in the cases were found to have been stolen. The charges were not consolidated.

On August 28, 1981 a suppression hearing was held before Judge Nelson Diaz regarding the evidence seized in the burglary case. Judge Diaz found that "at the time the police officer went looking for someone with that characteristic of the radio call he went there with the purpose of arresting this individual" and concluded that appellee was under arrest before the gun was seized. The suppression court granted appellee's motion to suppress, holding that the arrest was without probable cause because the source for the information in the radio broadcast was unknown and that, therefore, the evidence seized was the fruit of an illegal arrest. The Commonwealth elected not to appeal the case and nolle prossed the charge.

On September 8, 1981 a suppression hearing was held before Judge Eugene H. Clarke, Jr. on appellee's motion to suppress evidence of the gun in regard to the charges of

[ 517 Pa. Page 375]

    illegal possession of a firearm. Judge Clarke granted appellee's motion on the basis of collateral estoppel, relying on Judge Diaz's findings and conclusions in the burglary suppression hearing. This order was appealed to the Superior Court which affirmed in Commonwealth v. Lagana, 334 Pa. Super. 100, 482 A.2d 1101 (1984). On appeal to this Court we reversed and remanded the case directing the Superior Court to "have the ruling of the first suppression hearing incorporated into the record of the second hearing, and to allow review of the first decision on appeal as if it had been entered anew." Commonwealth v. Lagana, 510 Pa. 477, 483, 509 A.2d 863, 866 (1986).*fn3

The Superior Court upon remand held that Judge Diaz, the judge in the first suppression hearing, erred in concluding that appellee had been arrested prior to seizure of the gun and in suppressing the evidence as the fruit of the illegal arrest. Nevertheless, the Superior Court affirmed the suppression court's ruling, holding that the police officer did not have a reasonable suspicion sufficient to conduct an investigatory stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Commonwealth v. Lagana, 356 Pa. Super. 132, 514 A.2d 179 (1986). We granted allocatur and we now reverse.

In reviewing the findings of a suppression court where the Commonwealth is appealing, we must consider only the evidence of the defendant's witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983) (plurality opinion). While we are bound by the lower court's findings ...


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