Appendix — Pennsylvania v. Lovette

Tid THE SUPREME CUURT OF IHE UNITED STATES

COMMONWEALTH UF PEHISYLVANITA, | OCTOBER TERM, 1982

ALIDRE LOVETTE, AND SIMA LOVETTE,

REPRES NTATIVE OF THE ESTATE OF :

ANDRE LOVETTE, RESPONDENTS : NO,

CERTIFICATION OF SERVICE

I, ERIC b, HENSON, ESWUIRE, Counse. For PETITIONER,

COMMONWEALTH OF PENNSYLVANIA, HEREBY CERTIFY THAT I HAVE CAUSED

A COPY OF THIS PETITION FOR WRIT OF CERTIORARI TO THE SUPREME

Court OF PENNSYLVANIA TO BE SERVED uPON JOHN W, PACKEL, ESQUIRE,

CounseL FOR ResPonpents, ANDRE LOVETTE AND SIMONA LUVETTE, sy

DEPOSITING THREE COPIES IN THE UNITED STATES I‘aIL, First CLASS,

POSTAGE PREPAID, ADDRESSED TO JOHN W, PACKEL, ESQUIRE, Derenper

ASSOCIATION OF PHILADELPHIA, 121 NortH Broap STREET, PHILADELPHIA,

PENNSYLVANIA, 19107, on THuRSDAY, VecempBer 2, 1902,

OU NESTNUT TREET

a ia istrict ATTORNEY

HILADELPHIA, PENNA, 19107

SWORN TO AND SU SCRIBED

BEFORE ME THIS, 7 Ra

OF DECEMBER, 1 wD,

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( ¥ 1.)

TT WoTARY PUBLI

COMMISSION Expires: 4 [4/6 2

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SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA No, 497, January Term, 1979

Ghiobuopapany causa

ANDRE LOVETTE, APPELLANT | Verne 976s :

Vv.

JUUGHENTL

ON CONSIDERATION WHEREOF, IT IS NOW HERE ORDERED AND

ADJUDGED BY THIS COURT THAT THE JUDGMENT OF THE COURT OF COMMON

PLEAS, TRIAL DIVISION, CRIMINAL SECTION - PHILADELPHIA COUNTY,

BE, AND THE SAME IS HEREBY REVERSED AND A WEW TRIAL AWARDED,

BY THE COURT:

s/ Marcene F, Lacuman, Esa,

ROTHONOTARY

Datep: Octoper 5, 1982

IN THE. SUPRENE Chi be PENNSYLVANIA

ASTERN UISTRICT

COMMONWEALTH OF PENNSYLVANIA No, 497 January Term, 1979

APPEAL FR on RDER OF_THE

Vv, : Hes ripe TOBER TERM

upgtent BR) Aeriniing. Te

ANDRE LOVETTE, : URT OF a LEAS, CRIMI-

APPELLANT ; ODELPHTA AT iPegenser ata

abentagafpgest Tene

: ARGueD: Apric 15, 1982

OP Li 1 Ui

NIX, J. FILED: Uctoper 5, 1982

IN THIS APPEAL APPELLANT SEEKS IN THE ALTERNATIVE DISCHARGE

OR THE AWARD OF A NEW TRIAL, IN THE FIRST INSTANCE IT IS CONTENDED

THE EVIDENCE PRESENTED AGAINST APPELLANT WAS INSUFFICIENT AS A

MATTER OF LAW TO SUSTAIN THE CONVICTION, THE ALTERNATIVE POSITION,

THAT AT THE VERY LEAST THE .'UDGMENT OF SENTENCE MUST BE VACATED

AND A NEW TRIAL AWARDED, IS PREDICATED UPON THE CLAIMS THAT THE

COURT ERRED IN DENYING THE SUPPRESSION MOTION AND THE REJECTION

OF AFTER“DISCOVERED EVIDENCE WAS IMPROPER, ALTHOUGH WE DO NOT

ACCEPT APPELLANT'S ASSERTION AS TO THE INSUFFICIENCY OF THE EVI-

DENCE, WE DO AGREE THAT HE IS ENTITLED TO A NEW TRIAL BECAUSE OF

AN ERRONEOUS RULING ON THE SUPPRESSION MOTION. °

Ui UecemBeR 15, 1976 at 5:15 P.m, UFFICER James lcCoy, A

MEMBER OF THE PHILADELPHIA POLICE UEPARTMENT, WAS DISPATCHED TO

(1) li VIEW OF OUR DISPOSITION, WE NEED NOT CONSIDER THE MERITS

OF THE AFTER“DISCOVERED EVIDENCE CLAIM,

5115 WiLLows AVENUE IN RESPONSE TO AN ANONYMOUS CALL TO INVESTIGATE

"MALES WITH STOLEN PROPERTY IN A VACANT HOUSE,” UPON THE ARRIVAL

OF UFFICER IicCoY AND HIS PARTNER AT THE DESIGNATED PREMISES, THEY

FOUND STEREO EQUIPMENT, WRAPPED CHRISTMAS GIFTS, CLOTHING, POTTERY

AND OTHER ITEMS, THEIR INSPECTION OF THE SCENE REVEALED ACROSS

THE DRIVEWAY AT 743 SouTH 51st STREET A REAR DOOR WAS BROKEN DOWN

AND THAT THE HINGES HAD BEEN BROKEN OFF, OFFICER iicCoy ENTERED

THE HOME AND FOUND DRAWERS AJAR AND ITEMS STREWN OVER THE FLOOR,

APPROXIMATELY 10 MINUTES AFTER THE OFFICERS’ ARRIVAL AT THE SCENE,

(IR, HAROLD BENNETT APPEARED AND IDENTIFIED HIMSELF AS THE OWNER OF

5115 WiLLows AVENUE, iE STATED THAT HE HAD LEFT HIS HOME BETWEEN

10:50 A.M, AND 11:UU A.M, THAT MORNING AT WHICH TIME THE PROPERTY

WAS SECURED AND NO ONE HAD BEEN GIVEN PERMISSION TO ENTER IN HIS

ABSENCE, THE EXAMINATION OF THE SCENE ALSO DISCLOSED TRAILS OF

FOOTPRINTS IN A MUDDY PLOT OF GROUND BETWEEN /1R, DENNETT’S HOME

AND THE REAR OF THE VACANT PREMISE, iIR, BENNETT IDENTIFIED THE

GOODS FOUND IN THE ABANDONED PREMISE AS BEING TAKEN FROM HIS HOME,

UFFICER lICLOY BEGAN TO PATROL THE AREA AT WHICH TIME HE

OBSERVED THREE MALES A BLOCK AND A HALF FROM THE SCENE OF THE

BURGLARY, THE MEN ATTRACTED HIS ATTENTION BECAUSE OF THE MUD ON

THEIR SHOES, APPELLANT, A MEMBER OF THE TRIO, HAD A BROWN PAPER

BAG IN HIS HAND, THE OFFICER APPROACHED THE GROUP AND THEY MADE

NO EFFORT TO AVOID THE ENCOUNTER, THE OFFICER ASKED FOR IDENTIFI-

CATION AND THE THREE MEN WERE UNABLE TO PRODUCE ANY, THE OFFICER

ASKED APPELLANT WHAT WAS IN THE BAG HE WAS CARRYING AND APPELLANT

IMMEDIATELY REPLIED THAT IT CONTAINED A HAT, APPELLANT SHOWED

THE HAT TO THE OFFICER, AT THE OFFICER'S REQUEST, AND STATED THAT

HE HAD RECEIVED IT FROM A FRIEND. IN RESPONSE TO A QUESTION

CONCERNING THE CONDITION OF HIS SHOES, APPELLANT STATED HE HAD

PROBABLY WALKED THROUGH DIRT OR A Frecp, ‘

THE OFFICER DECIDED TO TRANSPORT THE GROUP TO THE HOME OF IIR,

BENNETT FOR A POSSIBLE IDENTIFICATION, BEFORE PLACING THE MEN IN

THE POLICE VEHICLE, THE OFFICER CONDUCTED A "PAT DOWN” SEARCH WHICH

PRODUCED FROM ONE OF APPELLANT’S COMPANIONS A RING AND A SILVER

DIME OF NUMISMATIC VALUE, THE COMPLAINANT IDENTIFIED THE HAT, RING

AND SILVER DIME AS BEING ITEMS TAKEN FROM HIS HOUSE, THE MEN WERE

THEN PLACED UNDER ARREST AND CHARGED WITH BURLGARY AND THEFT BY

UNLAWFUL TAKING,

AFTER A DENIAL OF THE PRE~TRIAL SUPPRESSION MOTION, APPELLANT

WAIVED TRIAL BY JURY AND PROCEEDED TO TRIAL ON THE BASIS OF THE

EVIDENCE ADMITTED AT THE SUPPRESSION PROCEEDING, THE DEFENDANT

RESTED WITHOUT OFFERING A DEFENSE AND WAS FOUND GUILTY AS CHARGED,

SUBSEQUENT TO THE DISPOSITION OF POST-VERDICT MOTIONS ADVERSE TO

APPELLANT, A SENTENCE OF A TERM OF IMPRISONMENT OF FOUR TO TWENTY~-

THREE MONTHS WAS IMPOSED, THE CONVICTION WAS AFFIRMED BY THE

SUPERIOR COURT SITTING EN BANC BY A FOUR TO TWO vore, > WE

GRANTED REVIEW,

1, SUFFICIENCY OF THE EVIDENCE,

THIS CLAIM OF APPELLANT IS QUICKLY DISPOSED OF ON THE INSTANT

RECORD, IHE TEST FOR SUFFICIENCY OF THE EVIDENCE IS WHETHER ACCEPT-

ING AS TRUE ALL OF THE EVIDENCE REVIEWED IN THE LIGHT MOST FAVOR~

ABLE TO THE COMMONWEALTH, TOGETHER WITH ALL REASONABLE INFERENCES

(2) AT THE TIME THE GROUP WAS APPROACHED, THEY WERE STANDING

NEAR AN AREA OF A CONCRETE AND DIRT VACANT LOT, IN THE GENERAL

AREA THERE WERE MANY DIRT REAR YARDS,

(3) JupGe SPAETH JOINED BY JUDGE HOFFMAN CONCLUDED THAT THE SUP-

PRESSION MOTION SHOULD HAVE BEEN GRANTED AND THAT APPELLANT WAS

ENTITLED TO A NEW TRIAL,

4H

THEREFROM, THE TRIER OF FACT COULD HAVE FOUND THAT EACH ELEMENT OF

THE OFFENSES CHARGED WAS SUPPORTED BY EVIDENCE AND INFERENCES SUF-

FICIENT IN LAW TO PROVE GUILT BEYOND A REASONABLE DOUBT, owmou-

WEALTH v. Ransome, 485 Pa, 4YU, 402 A.2p 1379 (1979); CommonweaLTH

va Sapusky, 484 Fa, 388, 399 A,2p 347 (1979) citinG COMMONWEALTH Vv.

DuLLivaA, 472 Pa, 129, 149-150, 371 A.2p 463, 473 (1977). See

ALSO, CommonWweALtH vy, Horton, 485 Pa, 115, 401 A.2p 320 (1979);

CommonWEALTH v. Toney, 474 Pa, 243, 37¢ A.2p 310 (1977); Common-

WEALTH Vv. Kose, 463 Pa, 264, 344 A.2p 324 (1975), lloreover, A

CLAIM OF INSUFFICIENCY OF THE EVIDENCE WILL NOT BE ASSESSED ON A

DIMINISHED RECORD, BUT RATHER ON THE EVIDENCE ACTUALLY PRESENTED

TO THE FINDER OF FACT RENDERING THE QUESTIONED VERDICT, CommoN-

WEALTH VY. Coen, 439 ba, 167, 413 A.2pv 1066 (1980); CommonweaLtH

Vs KUEBLER, 484 Pa, 35d, 361 n.*, 399 A,2pD 116, 117 n.* (1979);

COMMONWEALTH v, TABB, 417 Pa, 13, 16, 2U7 A.2p 884, 836 (1965),

HERE THERE IS LITTLE QUESTION THAT THE COMMONWEALTH PRODUCED

AMPLE EVIDENCE FOR A FINDER OF FACT TO CONCLUDE THAT THE PREMISES

AT 748 S, 5lst STREET HAD BEEN BURGLARIZED AND THAT THERE WAS 4

THEFT OF ITS CONTENTS, APPELLANT DOES NOT CHALLENGE THE PROOF OF

THE FACT OF THE BURGLARY OR THE THEFT BUT RATHER FOCUSES UPON THE

EVIDENCE OFFERED TO ESTABLISH HIS PARTICIPATION, APPELLANT CHAR@

ACTERIZES THE EVIDENCE IN THIS REGARD AS MERELY ESTABLISHING

"APPELLANT'S PRESENCE WITH TWO MEN, ONE OF WHOM WHO [SIC] POS-

SESSED STOLEN PROPERTY, NOT VISIBLE TO APPELLANT, WHICH HAD BEEN

TAKEN IN THE BURGLARY COMMITTED SOMETIME EARLIER THAT DATE, AND

APPELLANT'S POSSESSION OF A HAT WHICH WAS SIMILAR TO ONE TAKEN

IN THAT BURGLARY,”

APPELLANT TAKES TOO NARROW A VIEW OF THE COMMONWEALTH’S EVI-

DENCE PRESENTED TO ESTABLISH HIS GUILT. AT TRIAL IIR, BENNETT

TESTIFIED [SIC] THE HAT AS HAVING BEEN TAKEN FROM A BUREAU DRAWER

IN HIS DINING ROOM, THAT THE HAT MERELY RESEMBLED A HAT TAKEN FROM

THE HOUSE DURING THE BURGLARY WAS AN INFERENCE THAT THE DEFENSE

URGED THE FACT FINDER TO DRAW, IIOWEVER, THE FACT FINDER WAS OBVI-

OUSLY FREE TO ACCEPT IIR, BENNETT'S POSITIVE STATEMENT THAT THE HAT

WAS IN FACT THE ONE REMOVED FROM THE HOUSE. THAT ONE OF APPELLANT'S

COMPANIONS ALSO HAD ON HIS PERSON PROPERTY DEFINITELY IDENTIFIED

AS BEING TAKEN DURING THE SAME BURGLARY PROVIDES A BASIS FOR FIND=

ING THE TWO MEN AS BEING CO-PARTICIPANTS, IT UNQUESTIONABLY

REFUTES THE DEFENSE’S CHARGE THAT THE EVIDENCE DID NOT FSTABLISH

ANY RELATIONSHIP BETWEEN HIM AND THE OTHER TWO MALES HE WAS STAND-

ING WITH WHEN APPROACHED BY OFFICER IicLoy, THE CONDITION OF THE

SHOES OF THE TRIO WAS CONSISTENT WITH HAVING TRAVERSED THE AREA

BETWEEN THE BURGLARIZED HOME AND THE VACANT PROPERTY,

THE FACT THAT THE EVIDENCE ESTABLISHING A DEFENDANT'S PARTIC~

IPATION IN A CRIME IS CIRCUMSTANTIAL DOES NOT PRECLUDE A CONVICTION

WHERE THE EVIDENCE COUPLED WITH THE REASONABLE INFERENCES DRAWN

THEREFROM OVERCOMES THE PRESUMPTION OF INNOCENCE. COMMONWEALTH

Vo SULLIVAN, SUPRA) COMMONWEALTH Vv. FARQUHARSON, 467 Pa, 50, 354

A.2p 545 (1976); CommonweaLtH v, Cox, 466 Pa, 582, 353 A.2p 844

(1976); COMMONWEALTH v, PeTRisko, 442 Pa, 575, 580, 275 A.2p 46,

49 (1971), SE ALSO, COMMONWEALTH V, TINSLEY, 465 Pa, 329, 35U

A.2p 791 (1976); CommonweaLtH v. [eluryre, 451 Pa, 42, 47, 301

A.2D 332, 334 (1973). We ARE SATISFIED THAT THE POSSESSION OF

THE FRUITS OF THE BURGLARY FOUND ON THE APPELLANT AND HIS COMPAN-

IONS WITHIN A BLOCK AND A HALF FROM THE SITUS OF THE CRIME, WITH

HIS CLOTHING AND THAT OF HIS COMPANIONS IN A CONDITION COMPATIBLE

WITH A RECENT VISIT TO THE SCENE OF THE CRIME, WITHIN A HALF AN

HOUR OF THE DISCOVERY OF THE CRIME SUPPORTS A FINDING OF GUILT,

6A

THus THE SUFFICIENCY OF THE EVIDENCE CLAIM MAY PROPERLY BE DIS~

MISSED AS BEING WITHOUT SUBSTANCE,

I], LeGALity oF THE ARREST,

BOTH THE LOMMONWEALTH AND THE MAJORITY OF THE SUPERIOR CouRT

AGREED THAT THE POLICE DID NOT HAVE PROBABLE CAUSE FOR THE ARREST

OF APPELLANT AND HIS COMPANIONS UNTIL THE OWNER OF THE PREMISES

IDENTIFIED THE HAT IN APPELLANT'S POSSESSION AND THE ITEMS TAKEN

FROM HIS COMPANIONS AS HAVING BEEN TAKEN FROM THE BURGLARIZED

PREMISES, IN THIS JURISDICTION IT IS CLEAR THAT ONE MAY NOT BE

ARRESTED WITHOUT PROBABLE CAUSE. COMMONWEALTH V. BARTLETT, 4u6

Pa, 396, 406 A,2p 340 (1979); COMMONWEALTH Vv, STOKES, 43U Pa, 38,

389 A.2p 74 (19/3); COMMONWEALTH V. DICKERSON, 463 Pa, 599, 364

A.2p 677 (1976); CommonwealtH v. FarLey, 463 Pa, 437, 364 A,2p

299 (1976); CommONWEALTH v. CuLmer, 463 Pa, 139, 344 A,2p 487

(1975); CommonweattH v, Jackson, 459 Pa, 669, 331 A,2p 18Y (1975);

COMMONWEALTH Vv. RusH, 459 Pa, 23, 326 A.2p 34U (1974), We HAVE

DEFINED AN ARREST AS ANY ACT THAT INDICATES AN INTENTION TO TAKE

THE PERSON INTO CUSTODY AND SUBJECTS HIM TO THE ACTUAL CONTROL AND

WILL OF THE PERSON MAKING THE ARREST, COMMONWEALTH V. BOSURGI,

41] Pa, 56, 190 A,2p 304 (1963), See ALSO, COMMONWEALTH V, [EL SON,

436 Pa, 148, 411 A,2p 740 (1980) citing Sreping v, COMMONWEALTH,

430 Pa, 485, 391 A,2p 989 (1976) AnD CommMonWEALTH v. Brown, 240

Pa, Superior Ct, 214, 326 A.2p 906 (1974); CommonweaLtH v. SILO,

480 Pa, 15, 389 A.2p 62 (1978), CERTIORARI DENIED SILO v. PENN-

SynvANIA, 439 U.S, 1132, 99 S, Cr, 1053, 59 L.Ep.2p 94, REHEARING

pened 440 U.S, 969, 99 S, Cr, 1522, 59 L.Ep.2p 785 (1973); Lom-

MONWEALTH V. KicHARDS, 459 Pa, 455, 32/7 A.2p 63 (1974),

/A

IHE QUESTION RAISED 1S WHETHER PLACING APPELLANT IN A POLICE

VEHICLE, AFTER A “PAT DOWN” SEARCH AND TRANSPORTING HIM TO THE

SCENE OF THE BURGLARY CONSTITUTED AN ARREST, THERE IS NO DISPUTE

THAT THE OFFICERS INTENDED TO EXERCISE CONTROL OVER APPELLANT AND

HIS COMPANIONS AT LEAST UNTIL IIR, BENNETT HAD AN OPPORTUNITY TO

VIEW THE OBJECTS FOUND IN THEIR POSSESSION, THERE 1S NO CONTEN-

TION THAT APPELLANT VOLUNTARILY ACCOMPANIED THE OFFICER TO THE

SCENE OF THE BURGLARY. SEE, ExGs, COMMOUWEALTH V. RICHARDS, SUPRA.

UNDER ALL OF THE CIRCUMSTANCES, IT IS CLEAR THAT THE PLACING

OF APPELLANT AND HiS COMPANIONS IN THE POLICE VEHICLE FOR THE PUR-

POSE OF TRANSPORTING THEM TO THE SCENE OF THE OFFENSE, WITHOUT

THEIR CONSENT, CONSTITUTED AN ARREST AS THAT TERM HAS BEEN DEFINED

UNDER OUR CASES, IT IS EQUALLY TRUE THAT POLICE ACTION WAS A

SEIZURE OF THE PERSON WITHIN THE MEANING OF THE FOURTH AMENDMENT

OF THE FEDERAL CONSTITUTION. [ULCHIGAN Vv. Summers, _ U.S, —_,

69 L.Ev.2p 340 (1981),

CONCEDING, IMPLICITLY, THE LONGSTANDING TRADITION IN THIS

COMMONWEALTH THAT AN ARREST MUST BE SUPPORTED BY PROBABLE CAUSE,

IT IS BEING URGED THAT THE SEIZURE IS CONSTITUTIONALLY PERMISSIBLE

AND THAT THE LAW OF THIS COMMONWEALTH MUST ACCOMMODATE THIS LEGIT~

IMATE EFFORT TO ENHANCE THE CAPABILITIES OF LAW ENFORCEMENT TO

DETER, TO FERRET OUT AND TO PUNISH THOSE WHO WOULD DISREGARD OUR

LAWS, WE ARE SATISFIED THAT THE CONSTITUTIONAL VALIDITY OF THE

INSTANT SEIZURE IS AT BEST DUBIOUS AND THAT IT DOES NOT WARRANT A

DEPARTURE FROM THE LONGSTANDING TRADITION THAT AN ARREST MUST BE

SUPPORTED BY PROBABLE CAUSE,

TRADITIONALLY, IT WAS ACCEPTED THAT SEIZURES OF THE PERSON

WERE REQUIRED BY THE FOURTH AMENDMENT TO BE BASED UPON PROBABLE

3A

CAUSE, THIS PRINCIPLE WAS FOLLOWED WITHOUT EXCEPTION, GEJSTEIN

vy. Puc, 420 U.S, 103 (1975); Beck v. Uuto, 379 U.S, 89 (1964);

HeNey vy. Unitep States, 361 U.S, 98 (1959); JoHNSON v. Ui TED

States, 353 U.S, 10 (1947); Untren States vy. Di Re, 333 U.S, Sul

(1947); CARROLL v. Unitep States, 267 U.S, 132 (1924). See arso,

WiTeD STATES Ex Rew, Weicur vy. Cuvner, 565 F.2p 627 (Sp Cir, 1977);

Uuitep States vy, Empey, 546 F.2p 552 (3p Cir, 1976),

THE “LONG=PREVAJLING STANDARDS” OF PROBABLE

CAUSE EMBODIED “THE BEST COMPROMISE THAT HAS

BEEN FOUND FOR ACCOMMODATING . THE| OFTEN OPPOS-

ING INTERESTS IN “SAFEGUARDLINGJ CITIZENS

FROM RASH AND UNREAS hnel INTERFERENCES WITH

PRIVACY AND IN SEEKLING] TO GIVE FAIR LEEWA

TeSTHQH” Uh Bg * La aes ; ie

Toor'tH6, y3"L NED Tusa, 08, Ur 136. {Yai

HE STANDARD OF PROBABLE CAUSE THUS REPRE~

SENTED THE ACCUMULATED WISDOM OF PRECEDENT

AND EXPERIENCE AS TO THE MINIMUM JUSTIFICA=

TION NECESSARY TO MAKE, THE KIND OF INTRUSION

tao IN AN ARREST REASONABLE UNDER THE

OURTH AMENDMENT, [HE STANDARD APPLIED TQ

ALL ARRESTS, WITHOUT THE NEED TO BALANCE

THE INTERESTS AND CIRCUMSTANCES INVOLVED IN

BOUBT HIG)» S07 US 903, Fs CAES*G3h, "89'S" Ett

Uunaway v. Wiew York, 442 U.S, 200, 208 (1979),

THE FIRST RECOGNITION THAT THE FOURTH AMENDMENT REASONABLE-

NESS REQUIREMENT COULD BE SATISFIED BY A SHOWING OF SOMETHING LESS

THAN PROBABLE CAUSE WAS ANNOUNCED BY THE UNITED STATES SUPREME

Court In Jerry vy. Ouro, 392 U.S, 1 (1963), The JeRpy DECISION AND

ITs pRoGENY’4) STATED "THAT SOME SEIZURES ADMITTEDLY COVERED BY

THE FOURTH AMENDMENT CONSTITUTE SUCH LIMITED INTRUSIONS ON THE

PERSONAL SECURITY OF THOSE DETAINED AND ARE JUSTIFIED BY SUCH

De en ae

S

AMS V, WILLIAMS, Usd.

YA

SUBSTANTIAL LAW ENFORCEMENT INTERESTS THAT THEY MAY BE MADE ON

LESS THAN PROBABLE CAUSE, SO LONG AS POLICE HAVE AN ARTICUABLE

[Sic] BASIS FOR SUSPECTING CRIMINAL ACTIVITY.” [ULCHIGAN Vv. Sum=

MERS, SUPRA AT __, 69 L.Eb.2p at 343,

HOWEVER, THE COURT HAS ADMONISHED US TO BE MINDFUL THAT THE

JERRY PRINCIPLE 1S AN EXCEPTION TO THE GENERAL RULE REQUIRING

PROBABLE CAUSE AND MUST NOT BE EXTENDED IN SUCH A FASHION AS TO

SWALLOW THE RULE, WUNAWAY V. lieWw YORK, SUPRA. IN UUNAWAY THE

COURT STRESSED THE IMPORTANCE OF THE GENERAL RULE REQUIRING PROB-

ABLE CAUSE TO SATISFY THE REASONABLENESS TEST OF THE FOURTH

AMENDMENT,

caupeMEOUTMENGN Too PRonegTion OP A etTs~

ZEN'S PRIVACY AFFORDED BY THE FOURTH AMENDMENT’ S

GUARANTEES CANNOT BE COMPROMISED IN THIS FASHION,

AT ARECDEEP. It OUR HISTORY,” HE Ry vat b

H U

sare 3p ls an pa Pep op Y8t, Yeas EF

3 (1655), Hosticity To SerzuREs BASED ON

MERE SUSPICION WAS A PRIME MOTIVATION FOR THE

ADOPTION OF THE FOURTH AMENDMENT, AND DECISIONS

JMMEDIATELY AFTER ITS ADOPTION AFFIRMED THAT

,COMMON RUMOR OR REPORT, SUSPICION, OR EVEN

STRONG REASON TO SUSPECT’ WAS Nor ADEQUATE TO

SUPPORT A WARRANT FOR ARREST, Di» AT ,

FOOTNOTES OMITTED), IME FAMILJAR THRESHOLD

STANDARD OF PROBABLE CAUSE FOR FOURTH AMENDMENT

SEIZURES REFLECTS THE BENEFIT OF EXTENSIVE

EXPERIENCE ACCOMMODATING THE FACTORS RELEVANT

O THE "REASONABLENESS REQUIREMENT OF THE

OURTH AMENDMENT, AND PROVIDES THE RELATIVE

SIMPLICITY AND CLARITY rae TO THE IMPLE-

UNITED Tats SUPRA ar Y9c17be oe LED 1349,

ly. at 213,

IN ITS ANALYSIS IN THIS CASE THE COMMONWEALTH STRESSES THE

UTILITY TO CRIMINAL INVESTIGATIONS THAT IS PROVIDED BY THESE

SEIZURES WITHOUT THE NEED FOR ESTABLISHING PROBABLE CAUSE, THIS

IGNORES THE CLEARLY DEFINED TEST FOR ASCERTAINING THE APPLICABILITY

OF THE PROBABLE CAUSE REQUIREMENT. ”...CIJN ORDER TO DECIDE

1UA

WHETHER, . . [A] CASE IS CONTROLLED BY THE GENERAL RULE, IT IS

NECESSARY TO EXAMINE BOTH THE CHARACTER OF THE OFFICIAL INTRUSION

AND ITS JUSTIFICATION,” [EMPHASIS ADDED.) [ULCHIGAN Vv. SuMMeRs,

SUPRA AT __, 6Y L.ED, AT 348-49, USING THE PROPER ANALYSIS WE

CANNOT CONCLUDE THAT THE INSTANT SEIZURE IS SO CLEARLY WITHIN THE

JERRY EXCEPTION AS TO WARRANT A DEVIATION IN THIS CASE FROM THIS

JURISDICTION'S LONGSTANDING RULE OF ARREST BASED UPON A PROPER

SHOWING OF PROBABLE CAUSE,

BECAUSE THE SEIZURE WAS INSPIRED TO SERVE INVESTIGATIVE PUR-

POSES RATHER THAN TO ARREST AND CHARGE THE SUSPECT DOES NOT, BY

THAT FACT ALONE, JUSTIFY APPLICATION OF THE TERRY EXCEPTION,

UUNAWAY V, [ie YORK, SUPRA,

[T]o ARGUE THAT THE FOURTH AMENDMENT DOES NOT

APPLY TO THE INVESTIGATORY STAGE IS FUNDAMEN-

TALLY TO MISCONCEIVE THE PURPOSES OF THE FOURTH

AMENDMENT, INVESTIGATORY SEIZURES WOULD SUBJECT

UNLIMITED NUMBERS OF INNOCENT PERSONS TO THE

HARASSMENT AND IGNOMINY INCIDENT TO INVOLUNTARY

ETENTION, NOTHiNG IS MORE CLEAR THAN THAT THE

OURTH AMENDMENT WAS MEANT TO PREVENT WHOLESALE

INTRUSIONS UPON THE PERSONAL SECURITY OF OUR

GITIZENRY, WHETHER THESE INTRUSIONS BE [TERMED

ARRESTS’ OR 'INVESTIGATORY DETENTIONS,

YOibgte dealers, 394 U.S, 721, 726-2/

A SIMILAR ARGUMENT WAS AGAIN REJECTED IN UUNAWAY WHERE THAT

CourT OBSERVED:

IN EFFECT, RESPONDENT URGES US,,TO ADOPT A

MULTIFACTOR BALANCING TEST OF REASONABLE

POLICE CONDUCT UNDER THE CIRCUMSTANCES TO

COVER ALL SEIZURES THAT DO NOT AMOUNT TO TECH-

NICAL ARRESTS. DUT THE PROTECTIONS INTENDED

BY THE FRAMERS COULD ALL TOO EASILY DISAPPEAR

IN THE CONSIDERATION AND BALANCING OF THE MUL~

TIFARIOUS CIRCUMSTANCES PRESENTED BY DIFFERENT

CASES, ESPECIALLY WHEN THAT BALANCING MAY BE

DONE IN THE FIR5T INSTANCE BY POLICE OFFICERS

ENGAGED IN THE OFTEN COMPETITIVE ENTERPRISE

OF FERRETING OUT CRIME, IVATIONS OMITTED, ]

A SINGLE FAMILIAR STANDARD IS ESSENTIAL TO

1A

GUIDE POLICE, WHO HAVE ONLY LIMITED TIME AND

EXPERTISE TO REFLECT ON AND BALANCE THE SOCIAL

AND INDIVIDUAL INTERESTS INVOLVED IN THE SPE-

CIFIC CIRCUMSTANCES THEY CONFRONT. INDEED,

OUR RECOGNITION OF THESE DANGERS, AND OUR CON-

SEQUENT RELUCTANCE TO DEPART FROM THE PROVED

PROTECTIONS AFFORDED BY THE GENERAL RULE, ARE

REFLECTED IN THE NARROW LIMITATIONS EMPHASIZED

tH THE CASES EMPLOYING THE BALANCING TEST.

OOTNOTES OMITTED.

ld. AT 2135-214,

THe TERRY EXCEPTION HAS BEEN MOST FREQUENTLY APPLIED iN

INSTANCES INVOLVING MERELY AN INVOLUNTARY DETENTION, SEE, EsGs

COMMONWEALTH v. Anpersonu, 481 Pa. 292, 392 A.2p 1293 (1973); Con-

MONWEALTH V. Jones, 474 Pa. 364, 378 A.2p 835 (1977); CommonweaLTH

v. tims, 471 Pa. 546, 370 A.2p 1157 (1977); CommouweaLTH v,

Bauwey, 460 Pa. 493, 333 A.2p 383 (1975); CommouwEALTH v. RICHARDS,

supRA; CommonwEALTH v. Powrarp, 45U Pa, 133, 299 A.2p 253 (1975);

Betranp Appeal, 451 Pa. 341, 303 A.2p 436 (1975); CommonweaLTH va

Garvin, 448 Pa. 253, 293 A.2p 33 (1972); CommonwEaLTH v. Hicks,

434 Pa, 153, 253 A.2p 276 (1969). HERE WE HAVE THE ADDED ELEMENT

OF A TRANSPORTATION OF THE SUSPECTS FROM THE PLACE OF THE INITIAL

ENCOUNTER WITHOUT EXIGENT CIRCUMSTANCES TO SUPPORT THAT ACTION,

THE POLICE HAD THE OPTION OF DETAINING THE SUSPECTS AT THE SITE

OF THE INITIAL ENCOUNTER AND EITHER BRINGING THE COMPLAINANT TO

THE SITE FOR HIS IDENTIFICATION OF THE QUESTIONED ARTICLES OR TAK~

ING THOSE ITEMS TO HIM, EITHER SITUATION WOULD PRESENT A MUCH

STRONGER CASE FOR THE POSITION THE COMMONWEALTH FRESENTLY URGES.

THE COMMONWEALTH STRESSES THE LIMITED AREA TRAVERSED IN THE TRANS-

PORTATION OF APPELLANT, THIS FACT ONLY HIGHLIGHTS THE EASE WITH

WHICH THE IDENTIFICATION COULD HAVE BEEN MADE WITHOUT THE MOVEMENT

OF THE SUSPECTS, WHICH INCREASED THE INTRUSIVENESS OF THE ENCOUNTER,

THE INSTANT FACTUAL SITUATION IS ALSO ILLUSTRATIVE OF THE UNCER-

TANTIES ATTENDANT TO ANY ATTEMPT TO EXPAND THE JERRY EXCEPTION AND

—

REINFORCES THE WISDOM OF SCRUPUOUSLY [SIC] ADHERING TO THE NARROW

SCOPE OF THE EXCEPTION. DUNAWAY V. jicEW YORK, SUPRA.

CONSEQUENTLY, WE MUST CONCLUDE THAT THE CONSTITUTIONAL VALID-

ITY OF THE SEIZURE OF THE PERSON OF APPELLANT IN THIS CASE IS AT

BEST DUBIOUS. SINCE THE SEIZURE UNQUESTIONABLY CONSTITUTED AN

ARREST AS DEFINED IN THIS JURISDICTION WHICH REQUIRES PROBABLE

CAUSE, WE ARE NOT PERSUADED THAT WE SHOULD, ON THIS RECORD, DEPART

FROM THAT LONGSTANDING RESPECTED PRECEDENT. ACCORDINGLY, WE HOLD

THAT THE SEIZURE OF APPELLANT WITHOUT PROBABLE CAUSE CONSTITUTED

AN ILLEGAL ARREST AND THAT THE IDENTIFICATION OF THE HAT DURING

THAT ILLEGAL SEIZURE SHOULD HAVE BEEN SUPPRESSED,

THe JUDGMENT OF SENTENCE IS REVERSED AND A NEW TRIAL AWARDED,

lik, JUSTICE KOBERTS FILED A CONCURRING OPINION,

lik, JUSTICE FLAHERTY JOINED IN THIS OPINION AND THE CONCURRING

OPINION OF lik, JUSTICE ROBERTS.

HR, JUSTICE /iCVERMOTT FILED A DISSENTING OPINION.

1A

ti Tht SUPREME CUURT“UF PENNSYLVANIA

STERN VISTRICT

COMMUNWEALTH UF PENNSYLVANIA No. 497 January Term, 1979

APPEAL FROM THE URDER OF THE

Tent 1877 LOURT UCTOBER

ERM , AFFIRM-

ING THE JUDGMENT OF SENTENCE

: THE Court OF Common PLEAS,

Vv.

mipabecon{atar Oxcerotk em

bee fio 678" ‘

ARGUED: Apric 15, 1982

CONCURRING OPTiLuii

RUBERTS, J, Fitep: October 5, 1932

ANDRE LOVETTE,

APPELLANT

] AGREE THAT THE SEIZURE OF APPELLANT AND THE ADMISSION INTO

EVIDENCE OF THE FRUITS OF THAT UNLAWFUL ARREST CONSTITUTE A MANI-

FEST VIOLATION OF APPELLANT'S FOURTH AMENDMENT RIGHTS. INDEED, THE

COMMONWEALTH CONCEDES THAT APPELLANT WAS SEIZED WITHOUT PROBABLE

CAUSE,

WHERE, AS HERE, THE POLICE RESTRAIN A PERSON'S FREEDOM OF

ACTION BEYOND THE PERIOD OF TIME REQUIRED TO EFFECTUATE A JERRY

STOP AND WITHOUT PROBABLE CAUSE TO ARREST, IT IS OF NO CONSTITU-

TIONAL SIGNIFICANCE WHETHER THAT RESTRAINT IS ACCOMPLISHED BY

DETAINING THE PERSON WHERE HE IS INITIALLY ENCOUNTERED OR BY

TRANSPORTING THE PERSON TO ANOTHER LOCATION, IN BOTH CIRCUM-

STANCES, THERE IS AN UNLAWFUL ARREST, A VIOLATION OF THE FOURTH

AMENDMENT.

Vik, JUSTICE FLAHERTY JOINS IN THIS CONCURRING UPINION.

44A

IN THE SUPREME (dint? be penusvLvaNtA

STERN VISTRICT

CUMMONWEALTH OF PENNSYLVANIA No, 497 January Term, 1979

APPEAL yy THE URDER OF THE

PUPERIOB OURT, 4 UCTOBER

ERM 19/7, WO, 2366, AFFIRM-

ING THE JUDGMENT OF SENTENCE

vs

f THE Court oF Common PLEAS,

R

RIMIWAL TAL SAVISIOu, ae

syesmhr"Igy8r UeCEMER Tem

ARGUED: Aprit 15, 1982

DISSENTING OPINION

FR, JUSTICE McDERMOTT Fitep: Ocroper 5, 1932

] DISSENT,

STRIPPED TO ITS ESSENTIALS, THE MAJORITY HOLDS OR SEEMS TO

HOLD THAT, HAD THE POLICE BROUGHT THE COMPLAINANT TO THE SUSPECTS

AND NOT THE SUSPECTS TO THE COMPLAINANT, THE RESULT WOULD BE DIF-

FERENT. SEE SLIP UP, AT 13, THE DISTANCE TRAVELLED IN EITHER

INSTANCE WAS AT MOST A BLOCK AND A HALF. THAT A BLOCK AND A HALF

MIGHT SWALLOW THE “[ERRY EXCEPTION” IS THE TYPE OF FINICKY PRE~

CIOUSNESS THAT HAS SOLIDIFIED OUR REPUTATION FOR UNREALITY.~

] WOULD AFFIRM THE ORDER OF THE SUPERIOR Court.“

ANDRE LUVETTE,

APPELLANT

“+ + + oe oe Oe oe Oe ee ee oe oe

1. Qe& Legey vs 10, 592 U.S. 1 (1963).

2. I NOTE IN ‘eee THAT APPELLANT WILL BE UNABLE TO ENJOY

THE LARGESSE OF THE LOURT IN AWARDING HIM A NEW TRIAL BECAUSE HE

DIED NEARLY TWO YEARS PRIOR TO THE ARGUMENT IN THIS CASE. HAT

APPELLANT S COUNSEL NEVER BOTHERED TO INFORM THE LOURT OF TH]S

FACT, DEMONSTRATES EITHER A CYNICAL DISREGARD FOR THE CLIENT S

PARTICIPATION IN THE APPEAL PROCESS OR A SHOCKING ATTEMPT TO

DECE|VE THIS CourRT, ly EITHER EVENT, COUNSEL S FAILURE TO NOTIFY

THE LOUR™ OF APPELLANT'S DEATH BRINGS TO LIGHT A SINISTER AND

RAPIDLY EXPANDING SIDE OF THE CRIMINAL JUSTICE SYSTEM, IN WHICH

LAWYERS PARADE ABOUT AND ARGUE AND DELAY FOR THEIR OWN BENEFIT,

soneoTTan.” AND FAIRNESS, AND EVEN THE CLIENTS’ INTERESTS, ARE

N.

15A

J. 776/78

COMMUINWEALTH OF PENNSYLVANIA

dH Part ON"

19 472306 UcTOBER TERM,

Vv.

ANDRE LUVETTE,

APPELLANT

PHILADELPHIA DISTRICT

APPEAL FROM THE JUDGMENT OF SENTENCE of THE

OURT OF COMMON PI EAS OF PHILADELPHIA CounTY,

RIAL DIVISION, BiyINiAL ECTION, MPOSED my

NFORMATION Ilo, , VECEMBER SESSION, 19/76.

Ee MERE; Koen tEEN AEM: PE

OFINIUN BY CERCUNE, P.J.: FILED: Aucust 24, 1979

APPELLANT WAS CONVICTED OF BURGLARY, THEFT AND RECEIVING

STOLEN PROPERTY AND SENTENCED TO FOUR TO TWENTY-THREE MONTHS

IMPRISONMENT, APPELLANT SEEKS IN THE ALTERNATIVE THAT HIS JUDG-

MENT OF SENTENCE BE ARRESTED OR THAT HE BE GRANTED A NEW TRIAL,

APPELLANT'S FIRST ARGUMENT IS THAT HIS ARREST WAS CONSTITU-

TIONALLY INFIRM BECAUSE THE POLICE LACKED PROBABLE CAUSE TO ARREST

HIM, BASED UPON THE FACTS KNOWN AT THE TIME OF ARREST, WE DIS-

AGREE, THE ARRESTING OFFICER TESTIFIED THAT ON DECEMBER 15, 1976

AT 3:15 P.M, HE RECEIVED A RADIO DISPATCH TO INVESTIGATE MALES

WITH STOLEN PROPERTY IN A DESERTED HOUSE. WHEN THE OFFICERS

ARRIVED THEY FOUND STEREOS, CHRISTMAS GIFTS, CLOTHING, POTTERY

AND OTHER PROPERTY STORED IN THE VACANT BUILDING, ACROSS THE

DRIVEWAY FROM THE EMPTY HOUSE, THE POLICE SAW A BROKEN REAR DOOR

TO A HOUSE WHICH THEY DISCOVERED HAD BEEN BURGLARIZED. THE

OWNER OF THE BURGLARIZED HOUSE LATER IDENTIFIED THE GOODS FOUND

IN THE ABANDONED HOUSE AS BEING STOLEN FROM HIS HOUSE. IN TRANS-

PORTING THE STOLEN PROPERTY TO THE DESERTED HOUSE, THE BURGLARS

CROSSED A RAIN-SOAKED BACKYARD AND LEFT MUDDY TRAILS OF FOOTPRINTS

BETWEEN THE TWO HOUSES. SHORTLY AFTER THE OWNER OF THE BURGLARIZED

HOUSE ARRIVED AND IDENTIFIED HIS PROPERTY, UFFICER I'icCCoY BEGAN TO

PATROL THE AREA, APPROXIMATELY ONE AND ONE“HALF BLOCKS FROM THE

CRIME, THE OFFICER OBSERVED THREE MALES STANDING ON THE CORNER

WITH MUD AND DIRT ON THEIR SHOES. APPELLANT WAS HOLDING A BROWN

PAPER BAG IN HIS HAND, THE OFFICER APPROACHED AND REQUESTED IDEN-

TIFICATION, BUT THE MEN DID NOT IDENTIFY THEMSELVES. WHEN ASKED

HOW HIS SHOES HAD BECOME MUDDY, APPELLANT HESITATED AND REPLIED

THAT HE HAD PROBABLY WALKED THROUGH DIRT OR A FIELD IN THE COURSE

OF A DAY. THE OFFICER THOUGHT THE ANSWER EVASIVE. WHEN OFFICER

McCoy INQUIRED INTO THE CONTENTS OF THE PAPER BAG, APPELLANT SHOWED

THE OFFICER A CAMEL“HAIR COLORED HAT AND RESPONDED THAT HE JUST

GOT IT FROM A FRIEND OF HIS. OFFICER IicCoY THEN DECIDED TO TRANS-

PORT THE TRIO ONE AND ONE-HALF BLOCKS TO SEE IF THE BURGLARY

VICTIM COULD IDENTIFY THE HAT, BEFORE PLACING THE GROUP IN THE

POLICE WAGON, THE OFFICER CONDUCTED A “PAT-DOWN” SEARCH WHICH

REVEALED THAT ONE OF APPELLANT'S COMPANIONS POSSESSED A RING AND

A SILVER DIME WITH NUMISMATIC VALUE, THE COMPLAINANT IDENTIFIED

ALL THREE ITEMS AS BEING TAKEN FROM HIS HOUSE. ALL THREE MEN

WERE THEN ARRESTED AND TAKEN TO THE POLICE STATION,

APPELLANT DOES NOT ACTIVELY CONTEND THAT THE POLICE OFFICER

WAS NOT PERMITTED TO STOP AND DETAIN HIM BRIEFLY FOR IDENTIFICA-

TION, HOR DOES APPELLANT ASSERT THAT THE POLICE LACKED PROBABLE

CAUSE TO ARREST HIM ONCE THE HAT HAD BEEN IDENTIFIED. RATHER HE

CONTENDS THAT PROBABLE CAUSE WAS LACKING WHEN THE OFFICER DROVE

APPELLANT TO THE BURGLARIZED HOUSE. APPELLANT IDENTIFIES THE

OFFICER'S PLACING HIM IN THE PATROL WAGON AS THE TIME OF THE

ARREST, BECAUSE HE WAS SUBJECT TO THE CONTROL OF THE OFFICER,

2b

WHILE WE ACCEPT THAT APPELLANT WAS REQUIRED TO ACCOMPANY THE

OFFICER FOR THE ONE AND ONE-HALF BLOCK TRIP, WE DISAGREE WITH HIS

CONCLUSION THAT IN ORDER TO DO SO THE POLICE WERE REQUIRED TO HAVE

THE SAME QUANTUM OF PROOF NECESSARY TO SUPPORT A FULL-BLOWN ARREST.

WE ARE NOT FACED WITH THE ASPECTS OF SUCH AN ARREST BUT, RATHER,

WITH AN IDENTIFICATION PROCEDURE BY WHICH THE OFFICER COULD DETER-

MINE WHETHER THERE WAS PROBABLE CAUSE TO ARREST APPELLANT AND FOR-

MALLY CHARGE HIM WITH THE CRIMINAL OFFENSES. INSTEAD OF ARRESTING

APPELLANT, THE OFFICER MADE AN INTERMEDIATE RESPONSE BY TRANSPORTING

APPELLANT AND THE PROPERTY A SHORT DISTANCE FOR IDENTIFICATION,

INTERMEDIATE RESPONSES PREVIOUSLY HAVE BEEN APPROVED BY THE COURTS

OF THIS COMMONWEALTH. COMMONWEALTH V. LeESeuerR, 252 Pa, SuPERIOR

Cr. 498 (1977); ComMoNWEALTH Vv, JiARPER, 248 Pa, Superior CT, 344

(1977), AS GUIDED BY THE SuPREME CouRT DECISIONS IN TERRY Vv. UNIO,

392 U.S. 1 (190d), and ADAMS vs Wiiiaus, 407 U.S, 143 (1972),

THE OFFICER IN THIS CASE WAS RELUCTANT TO LET APPELLANT FREE TO

LEAVE AS NEITHER APPELLANT NOR HIS COMPANIONS HAD IDENTIFIED THEM

SELVES; AND THE HAT, AS EVIDENCE, COULD EASILY BE DESTROYED OR

CONCEALED. AT THE SAME TIME, THE OFFICER WAS RELUCTANT TO ARREST

APPELLANT ON THE BASIS OF THE INFORMATION KNOWN TO HIM AT THIS

TIME. RATHER THAN FORCE THE OFFICER TO CHOOSE BETWEEN SUCH OPPO-

SITE RESPONSES, THIS COURT SANCTIONS THE USE OF AN INTERMEDIATE

RESPONSE SUCH AS THE ONE USED IN THIS CASE, SEE ALSO COMMONWEALTH

Vs HARPER, SUPRA, OBVIOUSLY, ONCE THE HAT HAD BEEN IDENTIFIED,

THE OFFICER HAD THE REQUISITE INFORMATION TO ARREST APPELLANT.

CommonwealtH vy. Jones, 457 Pa, 423, 428 (1974). AccORDINGLY, WE

FIND NO ERROR IN THE COURT'S REFUSING TO SUPPRESS EVIDENCE DEMON-

STRATING THAT THE HAT HAD BEEN STOLEN,

3b

SECONDLY, APPELLANT CONTESTS THE SUFFICIENCY OF THE EVIDENCE

TO SUSTAIN HIS CONVICTION OF BURGLARY, THEFT AND RECEIVING STOLEN

PROPERTY. THE STANDARD OF APPELLATE REVIEW IS CLEAR AND UNCON-

TESTED. “THE TEST OF SUFFICIENCY OF THE EVIDENCE IS WHETHER

ACCEPTING AS TRUE ALL THE EVIDENCE, TOGETHER WITH ALL REASONABLE

INFERENCES THEREFROM UPON WHICH THE [FACTFINDER] COULD PROPERLY

HAVE BASED ITS VERDICT, SUCH EVIDENCE AND INFERENCES ARE SUFFI-

CIENT IN LAW TO PROVE GUILT BEYOND A REASONABLE DOUBT.” Common-

WEALTH V, Green, 464 Ia. 557, 565 (1975); ConmmouwEALTH v. JARLEY,

250 Pa. Superior Ct. 402 (1973). APPELLANT FRAMES HIS ARGUMENT

THAT A CONVICTION CANNOT STAND “SIMPLY BECAUSE HE HAD A HAT SIMI-

LAR TO ONE BELIEVED TAKEN IN A BURGLARY, AND WAS SEEN STANDING ON

A STREET CORNER NEXT TO A MAN [LATER] FOUND TO BE IN POSSESSION

OF ITEMS TAKEN IN A BURGLARY OF A NEARBY HOUSE.” IF THIS WERE

THE EXTENT OF THE COMMONWEALTH’S EVIDENCE, APPELLANT'S ARGUMENT

WOULD BE MUCH STRONGER, ADDITIONAL CIRCUMSTANTIAL EVIDENCE WAS

PRODUCED AT TRIAL WHICH, TAKEN ALONG WITH PERMISSIBLE INFERENCES

FROM SUCH EVIDENCE, SUPPLIED ANY MISSING LINK IN THE CHAIN OF THE

COMMONWEALTH’S PROOF, APPELLANT WAS IN POSSESSION OF A CAMEL-HAIR

COLORED HAT WHICH THE COMPLAINANT TESTIFIED WAS ALIKE IN EVERY

DETAIL TO THE ONE STOLEN FROM HIS HOUSE. FURTHERMORE, THE POLICE

WERE INSTRUCTED TO INVESTIGATE MALES IN A VACANT HOUSE WITH PROP-

ERTY WHICH WAS LATER IDENTIFIED AS THAT STOLEN FROM COMPLAINANT'S

HOUSE, SHORTLY THEREAFTER, APPELLANT AND HIS TWO COMPANIONS WERE

FOUND IN POSSESSION OF SOME OF THE STOLEN PROPERTY ONLY ONE AND

ONE-HALF BLOCKS AWAY FROM THE BURGLARIZED HOUSE. FINALLY, THE

BURGLARS HAD CROSSED A MUDDY BACKYARD IN PERPETRATING THE CRIME

AND APPELLANT'S SHOES WERE COVERED WITH MUD.

4B

ALTHOUGH A CONVICTION CANNOT REST UPON MERE PRESENCE NEAR

THE SCENE OF THE CRIME, COMMONWEALTH Ys Roscloni, 454 ba, 59

(1973), OR UPON MERE SUSPICION OR CONJECTURE, COMMONWEALTH V,

BALLEY, 443 Pa, 224 (1974), THE COMMONWEALTH’S BURDEN MAY BE MET

ENTIRELY BY CIRCUMSTANTIAL EVIDENCE, COMMONWEALTH V. AILEY, SUPRA,

AND IT IS SUFFICIENT IF THE CIRCUMSTANCES ARE CONSISTENT WITH CRIM-

INAL ACTIVITY EVEN THOUGH THEY MIGHT LIKEWISE BE CONSISTENT WITH

INNOCENT BEHAVIOR, COMMONWEALTH v. Rampo, 250 Pa, Superior Cr,

314 (1977); CormmouweatH v. Ioore, 226 Pa, Superior Cr, 32 (1973),

GIVEN THE SURROUNDING FACTS AND PERMISSIBLE INFERENCES IN THIS

CASE, WE CONCLUDE THAT A FACTFINDER COULD FIND APPELLANT GUILTY

BEYOND A REASONABLE DOUBT OF THE CRIMES CHARGED,

APPELLANT'S FINAL CONTENTION IS THAT THE TRIAL COURT ABUSED

ITS DISCRETION IN DENYING APPELLANT'S MOTION FOR A NEW TRIAL ON

THE BASIS OF AFTER DISCOVERED EVIDENCE, THE NEW “EVIDENCE” IS

THE TESTIMONY OF THE COMPLAINANT PROVIDED DURING THE HEARING ON

POST-VERDICT MOTIONS, THAT HE WAS MISTAKEN IN HIS TRIAL TESTIMONY

THAT THE HAT IN APPELLANT'S POSSESSION WAS STOLEN FROM HIS HOUSE.

THE COMPLAINANT EXPLAINED THAT AT TRIAL HE BELIEVED THAT HIS

FRIEND, MICHAEL LEONARD, HAD LEFT THE HAT AT HIS HOUSE, BUT LATER

LEARNED AFTER TRIAL THAT LEONARD HAD FOUND HIS HAT. APPARENTLY,

THE WITNESS RECANTED HIS TESTIMONY AT TRIAL THAT THE HAT WAS IN

HIS HOUSE ON THE DAY OF THE ROBBERY,

THE TRIAL JUDGE WHO HEARD THIS MODIFIED TESTIMONY OF THE

COMPLAINANT BELIEVED IT TO BE FALSE AND REFUSED TO GRANT A NEW

TRIAL, THERE WERE GOOD REASONS TO REJECT IT. FIRST, IT WAS HEAR-

SAY BASED UPON THE ALLEGED STATEMENTS OF /1ICHAEL LEONARD WHOSE

WHEREABOUTS WERE CURRENTLY UNKNOWN, BUT BELIEVED TO BE TEXAS.

SECOND, THE TESTIMONY WAS ONLY OFFERED AFTER APPELLANT AND HIS

—

MOTHER PAID A VISIT TO THE COMPLAINANT'S HOME. THIRD, THE COM-

PLAINANT ADMITTED HAVING HEARD RUMORS IN THE NEIGHBORHOOD THAT

APPELLANT DID NOT BURGLARIZE HIS HOME, FOURTH, IF THE HAT DID

NOT BELONG TO IIICHAEL LEONARD, AND APPELLANT'S EXPLANATION THAT

IT BELONGED TO A FRIEND OF HIS WERE TRUE, WHY DID NOT APPELLANT'S

FRIEND APPEAR AND TESTIFY? AND, FINALLY, AT THE HEARING THE COM-

PLAINANT WAS ARGUMENTATIVE WITH THE ASSISTANT DISTRICT ATTORNEY

AND, IN GENERAL, CONDUCTED HIMSELF AS AN ADVOCATE FOR APPELLANT'S

INNOCENCE [SIC] THAN AS A VICTIM OF A CRIME. . THESE FACTORS, WHEN

COUPLED WITH THE STRONG AND SURE IDENTIFICATION THE COMPLAINANT

PROVIDED FOR THE HAT AT TRIAL, AND HIS UNSHAKEABLE CERTITUDE THAT

THE HAT WAS IN HIS HOUSE ON THE DAY OF THE BURGLARY, PROVIDE

AMPLE BASIS FOR THE COURT BELOW TO REFUSE TO GRANT A NEW TRIAL.

BECAUSE “RECANTING TESTIMONY IS EXTREMELY UNRELIABLE, IT IS THE

DUTY OF THE COURT TO DENY A NEW TRIAL WHERE IT IS NOT SATISFIED

THAT THE TESTIMONY IS TRUE.” COMMONWEALTH V, Coreman, 433 Pa,

373, 377 (1970). AND, ON APPEAL, WE MAY NOT INTERFERE WITH THE

TRIAL COURT'S EVALUATION OF THE TESTIMONY UNLESS THERE HAS BEEN

A CLEAR ABUSE OF DISCRETION. COMMONWEALTH V, AupeRsou, 460 Pa.

339 (1976); CommouwEALTH v, COLEMAN, SUPRA, BASED UPON THE FORE-

GOING, WE CAN FIND NO ABUSE OF DISCRETION IN THE COURT'S REJECTING

THE RECANTING TESTIMONY.

JUDGMENT OF SENTENCE AFFIRMED.

SPAETH, J. FILES A DISSENTING OPINION IN WHICH HOFFMAN, J.

Joins. JACOLS, Former P.J. DID NOT PARTICIPATE IN THE CONSIDERA-

TATION OR DECISION OF THIS CASE.

6

J, 776/78

COMMONWEALTH OF PENNSYLVANIA =; Iii THE RIE ROLOR (QUKT OF

Vv, : PHILADELPHIA DISTRICT

ANDRE LOVETTE,

APPELLANT : lio, 2366 Octoper Term 1977

APPEAL PROW JUDGMENT or SENTENCE oF THE COURT

LE HILA, i

Cnt ST Aa lee TE

El BANC

BEFORE WA bee Vout SERB an Re STER, WN

DISSENTING OPINION BY SPAETH, Je: FILED: Auoust 24, 1979

THE MAJORITY HOLDS THAT THE POLICE, BY PUTTING APPELLANT

INTO THE POLICE WAGON AND TRANSPORTING HIM TO THE SCENE OF THE

BURGLARY, DID NOT “ARREST” HIM, BUT INSTEAD CARRIED OUT A PERMIS=

SIBLE "INTERMEDIATE RESPONSE”, SHORT OF A FULL ARREST, SLIP OP,

AT 3, THIS HOLDING, | SUBMIT, IS INCORRECT UNDER A NUMBER OF

DECISIONS, WHICH JUDGE HESTER COLLECTED AND STATED IN COMMONWEALTH

vy. Gray, — PA, Superior Ct, —, — A.2p —_ (rived January ld,

1979), IW GRAY, POLICE WERE GIVEN A DESCRIPTION OF ROBBERS AND

STOPPED FOUR INDIVIDUALS, PUT THEM INTO THE POLICE VAN, AND DROVE

BACK TO THE SCENE OF THE ROBBERY, JupGe HESTER sain:

OR DO WE HAVE ANY TROUBLE DECIDING THAT PLACING

APPELLANT IN " POLICE WAGON CONSTITUTED A FULL

Bx (FILED Fhe, ba aaa ra WHEN

ESCORTED TO A ROOM BY A POLICE OFFICER _AND LOCKED

1 aaa an BH en

HANDCMERED), ra th a

7b

PLACED IN TROQPER’S PATROL.CAR):

Yala, AOTEB,S BATROG CARE Goat ea TH

ARREST MAY BE ACCOMPLISHED BY ‘ANY ACT THAT

INDICATES AN INTENTION TO TAKE PERSON) INTO

CUSTODY AND SUBJECTS HIM TO THE ACTUAL CONTROL

AND WILL OF 15 RERSON mg |G THE ARREST,

1. AP cen 2D AT S11,

wen tiulunbAL Lit a Gh, SUPRA, SLIP OP, AT 2-3,

SEE ALSO, CommoNWeALTH Vv. Ilonton, 475 Pa, 374, 330 A.2p 769 (19/7)

(ARREST OCCURRED WHEN POLICE HANDCUFFED DEFENDANT AND GAVE HIM WO

INDICATION HE COULD LEAVE POLICE BUILDING), IN LIGHT OF THESE

CASES, IT CANNOT BE SERIOUSLY CONTENDED THAT THE POLICE DID NOT

ARREST APPELLANT, EVEN THOUGH THE DISTANCE THEY TRANSPORTED HIM

WAS A SHORT ONE,

THE CORRECTNESS OF THESE PENNSYLVANIA CASES WAS RECENTLY

UNDERSCORED BY THE SUPREME COURT OF THE UNITED STATES IN UUNAWAY

v.ldew York, 25 Cr.L. 3127 (June 5, 1979), THERE, ACTING ON A

TIP THAT DID NOT AMOUNT TO PROBABLE CAUSE TO ARREST, THE POLICE

“PICKED UP” A SUSPECT AND TOOK HIM TO THE STATION HOUSE FOR

INTERROGATION, THE POLICE ADMITTED THAT THE SUSPECT WAS NOT FREE

TO LEAVE (AS, HERE, THE MAJORITY “ACCEPT(S) THAT APPELLANT WAS

REQUIRED TO ACCOMPANY THE OFFICER FOR THE ONE AND ONE=HALF BLOCK

TRIP,” SLIP OP, AT 3), BUT ARGUED FOR JUST THE SORT OF INTERMEDIATE

RESPONSE (OR “BALANCING TEST”, UUNAWAY V. Iiew York, SUPRA AT 3131)

THAT THE COMMONWEALTH URGES HERE, THE SUPREME COURT REJECTED THAT

ARGUMENT;

STA "heuer He EQUETEENTW AMENDHENT, lite

aty Abel} PROVIDES! Hatta hes ie wis

PEOPLE TO BE SECURE IN THEIR PERSONS . . .

AGAINST UNREASONABLE SEARCHES AND SEIZURES,

SHALL NOT BE VIQLATED, AND NO WARRANTS SHALL

ISSUE BUT UPON "PROBABLE CAUSE, . . . THERE

GAN BE ,ITTLE ged THAT PETITIONER WAS

SEIZED IN THE FOURTH NDMENT SENSE WHEN

Ub

HE WAS JAxen INVOLUNTARILY TO THE POLICE STA-

TION, D RESPONDENT STATE CONCEDES THAT THE

POLICE LACKED PROBABLE CAUSE TO ARREST PETI-

TIONER BEFORE HIS INCRIMINATING STATEMENT

DURING INTERROGATION, NEVERTHELESS RESPONDENT

CONTENDS THAT THE SEIZURE OF PETITIONER DID

NOT AMOUNT TO AN ARREST AND WAS THEREFORE PER-

MISSIBLE UNDER THE FOURTH AMENDMENT BEGAUSE

THE POLICE HAD A “REASONABLE SUSPICION THAT

PETITIONER POSSESSED “INTIMATE KNOWLEDGE ABOUT

SERIOUS AND yijSOL VED CRIME, RIEF FOR

ESPONDENT AT 1U, WE DISAGREE,

lp. at 3129 (rootnoTes omiTTED),

THe COURT REFUSED TO EXTEND JERRY Vv. UHIO, 392 U.S, 1 (1¥bu), AnD

ADAMS Vv. iitLitAMS, 407 U.S, 143 (1972) (UPON WHICH THE MAJORITY

RELIES), THE NATURE OF THE INTRUSION IN THOSE CASES, THE COURT

SAID, WAS MUCH LESS OFFENSIVE THAN THE INTRUSION FORCED UPON THE

DEFENDANT It QUNAWAY, INDEED, IN NEITHER TeRRy wor ADAMS WAS

THERE A TRANSPORTING OF THE DEFENDANTS AWAY FROM THE SPOT WHERE

THEY WERE FOUND:

IN CONTRAST TO THE BRIEF AND NARROWLY

CIRCUMSCRIBED INTRUSIONS INVOLVED IN THOSE

CASES, THE DETENTION OF PETITIONER WAS IN

IMPORTANT RESPECTS INDISTINGUISHABLE FROM A

TRADITIONAL ARREST, PETITIONER WAS NOT QUES-

TIONED BRIEFLY WHERE HE WAS FOUND, INSTEAD,

HE WAS TAKEN FROM A NEIGHBOR'S HOME TO A

POLICE CAR, TRANSPORTED TO A POLICE STATION,

AND PLACED IN AN INTERROGATJON ROOM, jE WAS

NEVER INFORMED THAT HE WAS “FREE TO GO";

INDEED, HE WOULD HAVE BEEN PHYSICALLY

RESTRAINED IF HE HAD REFUSED TO ACCOMPANY

THE OFFICERS OR HAD TRIED TO ESCAPE THEIR

USTODY, , THE APPLICATION OF THE FOURTH

MENDMENT'S REQUIREMENT OF PROBABLE CAUSE

DOES NOT DEPEND ON WHETHER AN INTRUSION OF

THIS MAGNITUDE 1S TERMED AN "ARREST. UNDER

STATE LAW, IHE MERE FACTS THAT PETITIONER

WAS NOT JOLD HE WAS UNDER ARREST, WAS NOT

BOOKED,” AND WOULD NOT HAVE HAD AN ARREST

RECORD IF THE INTERROGATION HAD PROVED

FRUITLESS, WHILE NOT INSIGNIFI 4 THFRR ay

‘ +. &

CYBbQSES, SEE ,

( , OBVIOUSLY DO NOT MAKE PETITIONER'S

SEIZURE EVEN ROUGHLY ANALOGOUS TO THE NAR=

ROWLY DEFINED INTRUSIONS INVOLYED IN Leggy

AND ITS PROGENY, INDEED, ANY "EXCEPTION

Yo

TWAT Ggunan Sted waoup MhneApeN" MG vat

UnesCatePreRGouadce? OnLy Ye BASED ON Se

PROBABLE CAUSE,

UUNAWAY V, NEW YORK, SUPRA, AT 313U,

THE MAJORITY FINDS SUPPORT FOR ITS “INTERMEDIATE RESPONSE”

THEORY IN TWO CASES OF THIS COURT, HOWEVER, ONE, COMMONWEALTH

v. LeSeuer, 252 Pa, Supertor Cr, 498, _ A,2p __ (1977), 18

INAPPLICABLE, IN THAT CASE, THE MAJORITY HELD THAT PROBABLE CAUSE

TO ARREST EXISTED, THEREFORE, THE QUESTION WE FACE HERE WAS

SOLVED AT THE OUTSET, IT 1S TRUE THAT IN DISSENT I ARGUED FOR

WHAT MIGHT BE CALLED AN INTERMEDIATE RESPONSE, BUT | IN NO WAY

INDICATED THAT SUCH A RESPONSE COULD ENCOMPASS TAKING THE DEFEN~

DANTS AWAY, INDEED, THAT WAS PRECISELY WHAT | OBJECTED TO,

INSTEAD, | ARGUED FOR EXACTLY WHAT | URGE HERE: THAT THE POLICE,

INSTEAD OF TRANSPORTING SUSPECTS, USE THEIR INVESTIGATORY SKILLS

AT THE SPOT WHERE THEY FIND THE SUSPECTS, ERE, THE PUTATIVE

OWNER OF THE CAMEL COLORED HAT WAS ONE AND ONE“HALF BLOCKS AWAY

FROM APPELLANT, THERE IS NO REASON WHY THE POLICE COULD NOT HAVE

PROTECTED THEIR INVESTIGATION, AND APPELLANT'S RIGHTS TOO, BY

ASKING THE OWNER TO TRAVEL THE ONE AND ONE“HALF BLOCKS TO IDENTIFY

THE CAP, TERRY WOULD CERTAINLY ALLOW SUCH A BRIEF, ON-THESPOT

DETENTION OF APPELLANT,

COMMONWEALTH V. HARPER, 243 Pa, Superior Ct, 544, 375 A,2p

129 (1977), PROVIDES MORE SUPPORT FOR THE MAJORITY, BUT IS READILY

DISTINGUISHABLE, THERE, THE POLICE HAD PROBABLE CAUSE TO BELIEVE

THAT THE PERPETRATORS OF A CRIME WERE AMONG THE PASSENGERS ON A

BUS, ALL THOSE ON THE BUS WHO FIT THE DESCRIPTION WERE TAKEN TO

THE HOSPITAL, WHERE THE VICTIM IDENTIFIED THE DEFENDANT, AS THE

10b

OPINION NOTES, AT LEAST THE POLICE KNEW THEY HAD PROBABLE CAUSE TO

ARREST SOMEBODY IN THE GROUP; FURTHERMORE, THE VICTIM COULD NOT

COME TO THE SCENE. IiERE, HOWEVER, THERE WAS NO SUCH NEATLY

DESCRIBED CLASS DEFINITELY INCLUDING THE PERPETRATORS, AND THE

OWNER OF THE HAT WAS READILY AVAILABLE TO COME TO THE site.

HAVING DECIDED THAT THE POLICE ARRESTED APPELLANT, | NEXT ASK

WHETHER THERE WAS PROBABLE CAUSE FOR THIS ARREST. THE POLICE WERE

TOLD ONLY THAT “MALES” WERE SEEN WITH APPARENTLY STOLEN PROPERTY;

FROM FOOTPRINTS IN THE MUD, THE POLICE COULD ALSO PRESUME THAT THE

CULPRITS WOULD HAVE MUDDY SHOES. THEY STOPPED APPELLANT AND HIS

COMPANIONS, ALTHOUGH THEY DID NOT KNOW HOW MANY MEN WERE INVOLVED,

THEIR AGES, THEIR RACES, OR ANY OTHER ITEM OF DESCRIPTION. THE

GROUP WAS STOPPED A BLOCK AND A HALF FROM THE SCENE OF THE CRIME,

AND ABOUT 25 MINUTES AFTER THE CALL ABOUT THE “MALES” CAME OVER

THE RADIO. 1 SUBMIT THAT NOTHING CONCLUSIVE -- OR EVEN STRONGLY

PROBATIVE -- CAN BE DEDUCED FROM APPELLANT’S LOCATION IN MID-

AFTERNOON IN A RESIDENTIAL AREA. THE MOST PROBATIVE FACT WAS

THAT APPELLANT AND HIS TWO FRIENDS HAD MUD ON THEIR SHOES. YET

THE OFFICER TESTIFIED THAT THE AREA INCLUDED MANY HOUSES WITH

BACK YARDS, AND A DEMOLITION SITE THAT WOULD HAVE HAD “SOME”

DIRT, ii,T. SUPPRESSION HEARING AT 17, 21, APPELLANT COULD PRO-

DUCE NO IDENTIFICATION, SEEMED “EVASIVE,” AND HAD A HAT IN A BAG.

THESE FACTS DO NOT AMOUNT TO PROBABLE CAUSE TO ARREST.“ THE

MAJORITY, BY ANALYZING THE ISSUE IN TERMS OF WHETHER THE POLICE

i ;

I EXPRESS NO OPINION WHETHER, IN LIGHT OF UUNAWAY V, i/EW YORK,

SUPRA, REMAINS GOOD LAK,

SINCE THE FRISK, WHICH YIELDED A MAN'S RING AND OLD DIME, WAS

CONDUCTED INCIDENT TO THE DECISION TO LOAD THE THREE INTO THE POLICE

VAN, THOSE ITEMS -- ASSUMING THEY WERE PROBATIVE ~~ MAY NOT BE CON~

SIDERED IN DETERMINING THE QUESTION OF PROBABLE CAUSE TO ARREST.

1lb

WERE PERMITTED TO TRANSPORT APPELLANT ON LESS THAN THE QUANTUM OF

PROOF NECESSARY TO SUPPORT A FULL ARREST, APPARENTLY CONCEDES AS

MUCH,

THE PHYSICAL EVIDENCE AND APPELLANT'S STATEMENTS BEING FRUITS

OF AN UNLAWFUL ARREST, I SHOULD REVERSE THE JUDGMENT OF SENTENCE

AND REMAND FOR A NEW TRIAL,

HUFFMAN, J., JOINS IN THIS DISSENTING OPINION,

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