Appeal from the Judgment of Sentence of February 17, 1988 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 0049 August 1987.
Elaine Demasse, Assistant Public Defender, Philadelphia, for appellant.
Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
Tamilia, Montgomery and Hoffman, JJ.
[ 380 Pa. Super. Page 228]
This appeal is from the judgment of sentence for receiving stolen property. Appellant contends that the suppression court erred in denying his motion to suppress physical evidence. We agree and, accordingly, vacate the judgment of sentence and remand for a new trial.
Appellant was arrested and charged with burglary, theft, receiving stolen property, and criminal and defiant trespass. Prior to trial, appellant moved to suppress a video cassette
[ 380 Pa. Super. Page 229]
recorder ("VCR") and tapes that he had placed on a bench in a bar, and that had been seized by a police officer. The motion was denied, and appellant proceeded to trial before a judge sitting without a jury. On December 28, 1987, appellant was found guilty of receiving stolen property, and was acquitted on the remaining charges. Post-verdict motions were timely filed and denied, and appellant was later sentenced to a two-year term of probation. This timely appeal followed.
The scope of our review of the denial of a motion to suppress is well-established.
An appellate court is bound by the factual findings of the suppression court if they have support in the record. Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977); Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976); Commonwealth v. Iannaccio, 304 Pa. Super. 307, 450 A.2d 694 (1982). However, the suppression court's order may be reversed if the legal conclusions drawn from the factual findings are in error, Commonwealth v. Jackson, 497 Pa. 591, 442 A.2d 1098 (1982); Commonwealth v. Hall, supra.
Commonwealth v. Anderl, 329 Pa. Super. 69, 74-75, 477 A.2d 1356, 1358-59 (1984).
At the conclusion of the suppression hearing below, the court made the following findings of fact:
First, . . . Officer Mock testified that on April 17, 1987, approximately 10:00 p.m. he was on routine patrol in his patrol car travel[l]ing northbound on Baynton Street at or about the intersection with Chelten Avenue.
Secondly, that Officer Mock observed [appellant] walking southbound on Baynton Street carrying a green trash bag containing what appeared to be a VCR.
Third, that Officer Mock observed [appellant] enter a bar located on the corner of Baynton and Chelten Avenue.
Fourth, that Officer Mock entered the bar and found the trash bag, VCR, and eight video tapes located on a bench. He did not observe [appellant] in the bar at that time.
[ 380 Pa. Super. Page 230]
Fifth, that Officer Mock exited the bar and while placing the items in his patrol car, he observed [appellant] ...