Opposition — Pennsylvania v. Lovette

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Supreme Court Us

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82-918 DES 80 1982

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

NO,

COMMONWEALTH OF PENN YLVANIA,

Petitioner

VS.

ANDRE LOVETTE AND SIMONA LOVETTE,

Representative of the Estate Of

Andre Lovette, Respondents

ON PETITION FOR WRIT OF CERTIORARI

TO THE PENNSYLVANIA SUPREME COURT

BRIEF FOR RESPONDENT, ANDRE LOVETTE,

IN OPPOSITION

JOHN W, PACKEL, Assistant Defender

Chief, Appeals Division

BENJAMIN LERNER, Defender

Defender Association of Philadelphia

121 North Broad Street

Philadelphia, Pennsylvania 19107

December, 1982

I. QUESTIONS PRESENTED

1. Is not this criminal case moot as the defendant - res-

pondent is deceased, and does not this Court lack jurisdic-

tion to hear this matter?

2. Since the judgment of the court below rests on an ade-

quate and independent state ground, is there not a lack of

jurisdiction to hear this case, and should not certiorari be

denied?

3. Should not certiorari be denied because it is unneces-

sary to reach the allegedly important federal constitutional

questions involved in this case given that respondent's

dentention was constitutionally invalid from the outset, not

being authorized by Terry v. Ohio, 392 U.S. 1 (1968), and

its progeny?

II. PARTIES TO THE PROCEEDING

The only parties to the proceeding in the courts of

Pennsylvania were the Commonwealth of Pennsylvania and the

defendant in this criminal action, respondent, Andre Lovette,

who died on June 6, 1980. The caption of the case was

Commonwealth v, Andre Lovette, Pa., 450 A.2d 975 (1982).*

In this Court, the Commonwealth of Pennsylvania, without

motion, has attempted to add deceased respondent Andre

Lovette’s mother, Simona Lovette,** as a party, by including

her in the caption of the case and listing her as a res-

pondent.

* The reported decision of this case in the Pennsylvania

Supreme Court is attached as Exhibit "A".

** After learning of the death of respondent, Andre Lovette,

the Commonwealth of Pennsylvania filed a petition to abate

the pending appeal with the Supreme Court of Pennsylvania

(attached as Exhibit "B"). Counsel for Andre Lovette res-

ponded to that petition citing a number of reasons, and

substantial Pennsylvania authority, for resolving the ques-

tions then pending befwre the court despite the death of the

defendant. One suggestion made by counsel was that a sub-

stitution of parties might be appropriate under Pennsylvania

law, and counsel did request, in its answer to the Common-

wealth's Petition to Abate, that Simona Lovette be substi-

tuted, as a party, for Andre Lovette. The Supreme Court of

Pennsylvania denied the Commonwealth's Petition to Abate

without ordering the substitution of parties and proceeded

to decide the case on the merits with the two original

parties, the Commonwealth of Pennsylvania and Andre Lovette.

The Defender Association of Philadelphia, counsel for the

deceased respondent, Andre Lovette, was his appointed counsel

for all pg Es 6 in the state courts. The Defender

Association of Philadelphia has not been appointed counsel

to represent Simona Lovette who was not at any time a party

to the proceedings below.

«2 |

I1I. TABLE OF CONTENTS

PAGE

:, QUESTIONS PRESENTED 1

11, PARTIES TO THE PROCEEDING 2

he TABLE OF CONTENTS j

BY. TABLE OF AUTHORITIES 4-5

V JURISDICTION 6

VI, CONSTITUTIONAL PROVISIONS INVOKED 7-8

VIl. STATEMENT OF THE CASE 9-12

VIII. REASONS FOR DENYING THE WRIT 13-19

CONCLUSION 19

oD»

TABLE OF CITATIONS

CASES

BROCKINGTON V. RHODES

396 U.S. 41, 90 S.Ct. 206 (1969)

COMMONWEALTH V. BOSURGI

411 Pa. 56, 190 A.2d 304 (1963)

COMMONWEALTH V. CAMPANA

455 Pa. 622, 314 A.2d 854 (1974)

COMMONWEALTH V. DAVENPORT

471 Pa. 278, 370 A.2d 301 (1977)

COMMONWEALTH V. HAMILTON

449 Pa. 297, 297 A.2d 127 (1972)

COMMONWEALTH V. MILLIKEN

450 Pa. 310, 300 A.2d 78 (1973)

COMMONWEALTH V. ANDRE LOVETTE

Pa., 450 A.2d 975 (1982)

COMMONWEALTH V. WALKER

447 Pa. 146, 288 A.2d 741 (1972

DeFUNIS V. ODEGAARD

416 U.S. 312, 94 S.Ct. 1704 (1974)

DOVE V. UNITED STATES

423 U.S. 325, 96 S.Ct. 579 (1976)

DURLEY V. MAYO

533 8.8. 277. 76 3.Ce. S06 (Cisse)

FLAST V. COHEN

392 U.S. 83, 88 S.Ct. 1942 (1968)

GARVIN V. COCHRAN

371 U.S. 687, 66 S.Ct. 89 (1945)

GERSEWIRTZ V. NEW YORK

326 U.S. 687, 66 S.Ct. 89 (1945)

HAMPTON V. DITTY

414 U.S. 885, 94 S.Ct. 219 (1973)

HERB V. PITCAIRN

24 U.S. 117, 65 S.Ct. 459 (1945)

IN RE GROSS

476 Pa. 203, 382 A.2d 116 (1978)

JAFFKE V. DUNHAM

352 U.S. 280, 77 S.Ct. 307 (1957)

JANET D. V. CARROS

240 Pa. 291,

362 A.

JOUNSON V. TENNESSEE

214 U.S. 485,

29 S.

Ct.

1060 (1976)

651 (1909)

linn

lé

Continued TABLE OF CITATIONS

CASES PAGE

KER V. STATE OF CALIFORNIA 16

374 U.S. 23, 83 S.Ct. 1623 (1963)

LIST V. STATE OF PENNSYLVANIA 14

131 U.S. 396, 9 S.Ct. 794 (1888)

MICHIGAN V. SUMMERS 18

452 U.S. 692, 101 S.Ct. 2587 (1981)

MILLER V. OHIO 14

404 U.S. 1011, 92 S.Ct. 700 (1972)

NORTH CAROLINA V. RICE 13

404 U.S. 244, 92 S.Ct. 402 (1971)

PENNSYLVANIA V. LINDE 14

409 U.S. 1031, 93 S.Ct. 523 (1972)

PENNSYLVANIA V. MIMMS 14

434 U.S. 106, 98 S.Ct. 330 (1977)

RICHARDSON V. RAMIREZ 14

418 U.S. 24, 94 S.Ct. 2655 (1974)

STREET V. SURDYKA 16

492 F.2d 368 (4th Cir. 1974)

UNITED STATES V. DI RE 16

332 U.S. 581, 68 S.Ct. 222 (1948)

WALLING V. GENERAL INDUSTRIES COMPANY 18

330 U.S. 545, 67 S.Ct. 883 (1947)

wie

V. JURISDICTION

There is no jurisdiction to hear this matter since

there is no case or controversy as required by Article III

of the Constitution, the death of respondent, Andre Lovette,

having rendered this matter moot. See infra, p. 13-15.

Furthermore, there is no jurisdiction for this Court to

review the judgment in this matter, because that judgment

rests on an adequate and independent state ground, and the

Commonwealth of Pennsylvania is seeking an advisory opinion.

See infra, p. 15-17.

VI. CONSTITUTIONAL PROVISIONS INVOKED

United States Constitution, Article III, Sections 1 and 2

provide:

Section 1. The judicial Power of

the United States, shall be vested

in one supreme Court, and in such

inferior Courts as the Congress

may from time to time ordain and

establish. The judges, both of

the supreme and inferior courts,

shall hold their offices during

good Behaviour, and shall, at

stated Times, receive for their

Services, a Compensation, which

shall not be diminished during

their Continuance in the office.

Section 2. The judicial power

shall extend to all Cases, in

Law and Equity, arising under

this Constiution, the Law of

the United States, and treaties

made, or which shall be made,

under this Authority; - to all

Cases affecting Ambassadors,

other public ministers and con-

suls; - to all cases of ad-

miralty and maritime jurisdic-

tion; - to Controversies to

which the United States shall be

a Party, - to Controversies

between two or more States; -

between a State and Citizens

of the same State claimin

Lands under Grants of different

States, and between a State,

or the Citizens thereof, and

foreign States, Citizens or

Subjects.

In all cases affecting ambas-

sadors, other public Ministers

and Consuls, and those in which

a State shall be Party, the

Supreme Court shall have ori-

ginal Jurisdiction, In all the

other cases before mentioned,

the Supreme Court shall have

appellate jurisdiction, both

as to Law and Fact, with such

Exceptions, and under such Re+

gulations as the Congress shall

make,

The Trial of all Crimes, rr"

in Cases of Impeachment, shal

be by Jury; and such Trial

shall be held in the State where

the said Crimes shall have been

comitted; but when not com-

mitted within any State, the

Trial shall be at such Place or

Places as the Congress may by

Law have directed, |

-7-

United States Constitution, Amendment Four, which pro-

vides;

The right of the people to be

secure in their persons, houses,

papers, and effects, against

unreasonable searches and seiz-

ures, shall not be violated, and

no Warrants shall issue, but

upon probable cause, supported

by Oath or affirmation, and

particularly describing the

place to be searched, and the

persons or things to be seized,

United States Constitution, Amendment Fourteen, Section

One, which provides:

All persons born or naturalized

in the United States, and sub-

ject to the jurisdiction thereof,

are citizens of the United States

and of the State wherein they

reside, No State shall make or

enforce any law which shall

abridge che privileges or im-

munities of citizens of the

United States; nor shall any

State deprive any person of

life, liberty, or property, with-

out due process of law; nor

deny to any person within its

jurisdiction the equal pro-

tection of the laws.

VIL, STATEMENT OF THE CASE

Andre Lovette, "respondent,"* was charged with burglary

theft, and receiving stolen property by the district attorney

of Philadelphia in Information No, 1673 of December Sessions,

1976. Respondent filed a timely pre-trial motion to suppress

physical evidence and statements, and a hearing was held on

January 21, 1977.

The only witness who testified at the hearing on the

motion to suppress evidence was the arresting officer, James

McCoy, Officer McCoy testified that on December 15, 1976

about 3:15 P.M,** he was in a patrol wagon and went to a

vacant house at 5115 Willows Avenue in Philadelphia in res-

ponse to a police radio call from an anonymous source, which

said that there were males with property inside. Inside

that vacant house Officer McCoy found no people, but did

observe stereo equipment, clothing, pottery and other items.

He noticed that across the driveway at 748 S, 5lst a rear

door was broken down and that the hinges were knocked off.

He went into this house about 3:25 P.M. and found drawers

ajar, and items strewn all over the floors, Officer McCoy

contacted a supervisor, and about 15 or 20 minutes later the

complainant, Harold Bennet, arrived and told the officer

that it was his house, that he had left it at 10:30 or 11:90

in the morning and that he had given nobody permission to

enter the house in his absence (N,.T, 4-5, 8-9).

* “Respondent” will be used to designate Andre Lovette, the

defendant in this criminal case, The additional respondent now

added in the caption of the case, Simona Lovette, has nothing

to do with the factual history of this case, and will be re-

ferred to as "Mrs, Lovette.”

** At one point in the notes of testimony, the time is

indicated 48 5:15 P.M. (N.T. 4), but later testimony indi-

cates that the officer must have meant to say 3:15 P.M.,

iven the other periods of time to which he testified (N.T.

, 9, 19). "NT." refers to the transcript of the testimony

from the hearing on the motion to suppress evidence and

trial, which is contained in a single volume.

ats

Po a

Officer McCoy noticed that the rear of the house had

a plot of dirt, which was muddy, because it had rained a

day or two earlier, and that there were footprints leading

to and from the rear of Mr, Bennett's house to the vacant

property where various items were found. This was a re-

sidential area with many such rear yards, Officer McCoy

got into his patrol wagon and drove a block and a half

away, where he saw three men, one of whom was respondent,

standing at 52nd and Willows Street, near an area which

is a concrete and dirt vacant lot. Officer McCoy stopped

these men because they had dirt and mud on their shoes, He

asked respondent about the mud on his shoes and he responded

that he had probably walked through dirt or in a field

during the course of the day (N.T. 10, 12, 15, 17, 20-21).

Officer McCoy considered this answer evasive, and then

asked respondent what he had in a closed paper bag that he

was carrying. Respondent told him a hat, and then opened

the bag at the officer's request and showed him that it

did in fact contain a hat, When asked whose hat it was,

he responded that it belonged to a friend of his. Officer

McCoy then placed respondent and the other two males in

the police wagon because, from the mud on their shoes

and the answers given to his questions, he decided he

wanted to take them to the complainant's house to see if

the complainant could identify any property that they

had (N.T. 11-13),

Officer McCoy "patted down" respondent and the

other two males upon placing the three men in the patrol

wagon, He found that one of the males had a ring and a

silver dime in his possession. Officer McCoy drove the

three males to the complainant's house a block and a half

away, and at that time the complainant identified the

hat, ring, and dime as items that were taken from his

-10-

house. Respondent and the other two men were taken to the

police station (N.T, 14-16).

The motion to suppress was denied, and the case pro-

ceeded to trial without a jury, after respondent waived

his right to a jury trial, The only other witness at

trial was the complainant, Harold Bennett, who testified

that the hat seized from respondent was similar in age,

color and shape to a hat that had been left at his house

by a friend, before the burglary, and was missing after the

burglary (N.T. 40-51, 55-60),

Respondent was convicted of all charges, He filed mo-

tions in support of post-verdict relief, A hearing was

held on his claim of after-discovered evidence, and the com-

plainant, Harold Bennett, testified that after the trial

the hat belonging to his friend was found, and that he

realized that he was misteken at trial when he identified

the hat seized by police from respondent as belonging to his

friend, as it definitely was not taken from his house

(P.T.H, 3-7, 14, 16-18, 28, 36).* Post-verdict relief

was denied, and respondent was sentenced to a term of im-

prisonment of from four to twenty three months.

A timely appeal was taken by respondent to the Superior

Court of Pennsylvania, and on August 24, 1979, a@ majority

of that court affirmed his judgment of sentence, A timely

petition for allowance of appeal was then filed to the

Pennsylvania Supreme Court which granted the petition, While

respondent's appeal was pending in the Pennsylvania Supreme

Court, he died, and the Commonwealth of Pennsylvania filed

a petition to abate the appeal (See Exhibit "B"). That

petition was denied, and on October 5, 1982, the Pennsylvania

ad "P.T.H." is used here to designate the notes of testimony |

— Ho hearing on post-trial motions which was held on June

’ l .

a |

Supreme Court reversed respondent's judgment of sentence

and awarded a new trial on the ground that the pre-trial

suppression motion was incorrectly denied, The Court noted

in its opinion that because of that disposition it did not

need to consider the merits of his after-discovered evidence

claim, The Commonwealth of Pennsylvania now seeks this

Court's review of the judgment of the Pennsylvania Supreme

Court,

VIII, REASONS FOR DENYING THE WRIT

A. Mootness

This is a criminal case, and the defendant - res-

pondent, has died, He died while his appeal was pending in

the Pennsylvania Supreme Court, The Pennsylvania appellate

courts, contrary to this Court, the lower federal courts, and

almost every state appellate court in the country, (See

Exhibit "B') does not necessarily consider an appeal in a

criminal case moot when the defendant has died, Common-

wealth v, Walker, 447 Pa, 146, 288 A.,2d 741 (1972), See

Janet D, v, Carros, 240 Pa, 291, 311, 362 A,2d 1060, 1070

(1976). See also In Re Gross, 476 Pa, 203, _ , 382 A,2d

116, 122-23 (1976); Meyer v, Strouse, 422 Pa, 136, 138, 221

A.2d 191, (1966),

The Pennsylvania Supreme Court, therefore, as a matter

of state law, denied the Commonwealth of Pennsylvania's

petition to dismiss the appeal on mootness grounds, and pro-

ceeded to rule on the merits of the case, reversing the

deceased respondent's judgment of sentence and awarding him

anew trial,

It is now irrelevant that as a matter of state law this

case was not considered moot, because Article II1l of the

United States Constitution requires that there be in exis-

tence a case or controversy, thus "even in cases arising in

the state courts, the question of mootness is a federal one

which a federal court must resolve before it assumes juris-

diction.” DeFunis v, Odegaard, 416 U.S, 312, 316, 94 S.Ct,

1704, 1706 (1974), quoting North Carolina v., Rice, 404 U.S.

244, 246, 92 S.Ct. 402, 404 (1971).

In this criminal case it is clear that there is now no

case or controversy because of the death of the defendant -

respondent, as this Court has consistently held that under

such circumstances the action is moot and certiorari will be

denied or an appeal will be dismissed. See e.g. Dove v.

United States, 423 U.S. 325, 96 S.Ct. 579 (1976); Hampton v.

Ditty, 414 U.S. 885, 94 S.Ct. 219 (1973); Miller v. Ohio,

404 U.S. 1011, 92 S.Ct. 700 (1972); Garvin v. Cochran, 371

U.S. 27, 83 S.Ct. 122 (1962); Gersewirtz v. New York, 326

U.S. 687, 66 S.Ct. 89 (1945); Johnson v. Tennessee, 214 U.S.

485, 29 S.Ct. 651 (1909); List v, State of Pennsylvania, 131

U.S. 396, 9 S.Ct. 794 (1888).

In Pennsylvania v, Linde, 409 U.S. 1031, 93 S.Ct. 523

(1972), the state of Pennsylvania, as it does here, sought

certiorari in a case where a defendant in a criminal case

had been awarded a new trial by the Pennsylvania Supreme

Court. When the defendant died while Pennsylvania's petition

was pending, this Court dismissed its petition for cer-

tiorari. This case, like Pennsylvania v. Linde, involves

only a single defendant, now deceased, and the Commonwealth

of Pennsylvania, thus there can be no asserted interests of

a class, as in a class action suit, that might survive the

death of respondent. See DeFunis v, Odegaard, 416 U.S. 312,

94 S.Ct. 1704 (1974); Brockington v, Rhodes, 396 U.S. 41, 90

S.Ct. 206 (1969). See and compare Richardson v. Ramirez,

418 U.S. 24, 94 S.Ct. 2655 (1974).

Since this Court reviews judgments, and not opinions, it

is difficult to discern the relief which can be awarded to

the state if the Pennsylvania Supreme Court's grant of a new

trial to this deceased respondent is overturned. The rein-

statement of the judgment of sentence would be a futile act

since respondent will be unable to serve it, and there can

be no collateral consequences against him in future criminal

proceedings. See and compare Pennsylvania v. Mimms, 434

U.S. 106, 98 S.Ct. 330 (1977). In an attempt to avoid a

denial of certiorari on mootness grounds, Pennsylvania has

added respondent's mother, Simona Lovette, his personal

ave

representative, as party, but it has asserted no potential or

actual claim it will have against her or his estate* if the

grant of a new trial is reversed and respondent's judgment

of sentence is reinstated by this Court. Mrs. Lovette

obviously cannot be forced to serve a prison sentence on

behalf of her deceased son,

What is sought here by the Commonwealth of Pennsylvania

given the lack of a case or controversy, is an advisory

opinion, and the "oldest and most consistent thread in the

federal law of justiciability is... that the federal courts

will not give advisory opinions.” Flast v. Cohen, 392 U.S.

83, 96, 88 S.Ct. 1942, 1950 (1968). The petition for writ

of certiorari should be denied.

B. Adequate And Independent State Ground

This Court has consistently held that if the judgment

of the court below appears that it might have been based on

non-federal grounds there is no jurisdiction, as the peti-

tioner for certiorari must establish that a state ground

cannot account for the decision below. Durley v. Mayo, 351

U.S. 277, 281, 76 S.Ct. 806, 809 (1956). This is because

the power of this Court is limited to correcting wrong

judgments, not revising opinions, thus there is no jurisdic-

tion if the same judgment would be rendered by a state court

even if this Court corrected its view of federal law. Herb

vy. Pitcairn, 324 U.S. 117, 125-126, 65 S.Ct. 459, 463 (1945).

* Respondent died intestate, and left no estate. See affi-

davit of counsel in support of petition to proceed in forma

pauperis. Even if this Court granted certiorari and reversed

the grant of a new trial awarded by the Pennsylvania Supreme

Court that would not be the end of litigation involving this

dead defendant because the case would have to be remanded

to the Pennsylvania Supreme Court for consideration of res-

pondent's claim that he was entitled to a new trial because

of after discovered evidence, a claim arising under state law

that the Pennsylvania Supreme Court did not reach because it was

not necessary given its disposition of the suppression issue.

Commonwealth v. Lovette, Pa., 450 A.2d 975, 976, n. 1 (1982).

-15-

Because the judgment of the Pennsylvania Supreme Court rests

on an adequate and independent ground of state law, this

Court should deny the petition for certiorari.

The states are, of course, free to grant those accused

or suspected of crime with rights greater than those required

to be granted by the United States Constitution, and the

Pennsylvania Supreme Court in «a variety of contexts has

often extended such protections not required by the United

States Constitution pursuant to its supervisory powers over

state criminal proceedings.* It is thus clear that a state,

as a matter of state law, may impose greater restrictions on

police anu afford greater protections to its citizens when

it defines what constitutes an arrest, and determines the

lawfulness of arrests by state officers for state offenses.

See e.g. Ker v. State of California, 374 U.S. 23, 37, 83

S.Ct, 1623, 1632 (1963); United States v. Di Re, 332 U.S

581, 589, 68 S.Ct, 222, 226 (1948); Street v. Surdyka, 492

F.2d 368, 372 (4th Cir. 1974). Whether or not the judgment

of the Pennsylvania Supreme Court in this case was required

by the United States Constitution is a question which this

Court should not decide, since the Pennsylvania Supreme

Court held, as a matter of state law, that respondent's

arrest was illegal, and suppressed the fruits of that arrest.

Citing a long line of Pennsylvania cases, beginning

with Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304

(1963), which defines an arrest in Pennsylvania "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," the Pennsylvania Supreme Court

* gz. Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d

301 (1597) “Commonwealth v. Campana, 455 Pa. 622, 624, 314 A.2d

854, 855 (1974); Commonwealth v. Milliken, 450 Pa. 310, 315, 300

A.2d 78, 81 (1973); Comnonaesl th ve Hamilton, 449 Pa. 297, 308- 09,

297 A. 2d 127, 132-33 (1972).

decided "that the placing of appellant and his companions in

the police vehicle for the purpose of transporting them to

the scene of the offense, without their consent, constituted

an arrest as that term has been defined under our cases."

Commonwealth v. Lovette, Pa., 450 A.2d 975, 978 (1982). The

Pennsylvania Supreme Court's opinion then contains an ex-

tended analysis of whether the seizure of respondent also

violated the Fourth Amendment of the United States Con-

stitution. It concluded by holding that the action of the

police constituted an illegal arrest under Pennsylvania law,

and may also have been unconstitutional.

Consequently, we must conclude

that the constitutional vali-

dity of the seizure of the

person of appellant in this

case is at best dubious. Since

the seizure unquestionably

constituted an arrest as de-

fined in this jurisdiction

which requires probable cause,

we are not persuaded that we

should, on this record, de-

part from that longstanding

respected precedent. Accord-

ingly, we hold that the sei-

zure of appellant without pro-

bable cause constituted an

illegal arrest and that the

identification of the hat

during that illegal seizure

should have been suppressed,

Commonwealth v, Lovette, Pa.,

L450 A.2d 975, 98l (19872).

Because the judgment of the Pennsylvania Supreme Court

rests on an adequate and independent state ground this Court

should deny Pennsylvania's petition for a writ of cer-

tiorari.

C. Lack Of Necessity To Reach Constitutional Issue Presented

The Commonwealth of Pennsylvania seeks certiorari to

have this Court decide constitutional questions concerning

the limits on police conduct when an individual has been

lawfully stopped and detained but there is no probable cause

to arrest that person. Because this case involves a stop

and detention constitutionally impermissible under Terry v.

Ohio, 392 U.S, 1, 88 S.Ct. 1868 (1968), and its progeny,*

this case does not provide an appropriate vehicle for re-

solving the questions presented by the Commonwealth of

Pennsylvania,

For any seizure of the person involving a stop or com-

parable intrusion on an individual's liberty this Court has

held that the Fourth Amendment requires that the police

officer must be able to point to specific and articulable

objective facts for suspecting the individual of criminal

activity. E.g., Michigan v. Summers, 452 U.S. 692, 101

S.Ct. 258° (1981); Terry v. Ohio, supra.

In this case police knew that a house had been bur-

glarized sometime within the last few hours, and an anony-

mous radio call indicated that males had been seen in a

vacant house with property. Police had no description of

the property taken, or the males involved. Behind the

burglarized house there was a muddy backyard with footprints

leading to the vacant house where property was found. This

was a residential area with many such backyards, and it had

rained a day or two earlier,

Twenty minutes after police arrived at the scene of the

burglarized house, respondent and two other men at a corner

a@ block and a half irom the scene of the burglary and near a

vacant lot were stopped and detained solely because they had

dirt and mud on their shoes. Respondent and the other men

were not acting suspicious or unusual, as it was only the

appearance of their shoes that led to their detention.

Since the mud and dirt on their shoes could have come

from any number of sources other than the backyard of the

* This issue was raised by respondent in the Pennsylvania

courts. Respondent can assert any ground in support of the

udgment below. See ae Jaffke v. Dunham, 352 U.S. 280,

7 S.Ct. 307 (1957); Walling v. Ceneral Industries Co., 330

U.S. 545, 67 S.Ct. 883 C1949) -

-18-

burglarized premises, it is clear that if detaining res-

pondent and the other men was constitutionally permissible

then every male in the neighborhood of the burglary with mud

and dirt on his shoes could also have been detained. The

United States Constitution has never been interpreted to

permit such dragnet seizures of individuals in the areas of

crimes who are not acting in at least a suspicious manner.

Therefore, because the stop and detention of respondent was

constitutionally impermissible, this Court should not grant

certiorari since the constitutional questions*® raised by the

Commonwealth concerning the scope of police conduct during a

proper detention would not have to be reached.

CONCLUSION

For the foregoing reasons it is respectfully submitted that

this petition for writ of certiorari should be denied.

Respéct fully submitted,

Sete ee eons —— —

sel For Respondent

* The Commonwealth of Pennsylvania, by citing to cases

involving a variety of different detentions, including an

airport concourse and offices, which are dissimilar to what

occurred here, inadvertently emphasizes exactly why cer-

tiorari should be denied in a case like this, The consti-

tutional appropriateness of the detentions in such cases is

best resolved on a case by case basis dependent on the

particular factual situation.

-19-

=>. COM ¥. LOVETTE . ©

Pa 975

Ove me, Pa. 400 Ane 7D

“Pp? é a tee ~~ 2 Criminal Law @*1134(2)

COMMONWEALTH of Pennsylvania Claim of insufficency of evidence will

‘ . . : ~ pot be assessed on diminished record, but

’.

Andre LOVETTE, Appellant.

Supreme Court of Cig

Pennsy)vania

Argued Apri) 15, 1982 -

Decided Oct §, 1982

Defendant was convicted in the Court

of Common Pleas, Philade!phia County, Tr

a! Division. Criminal Section, Informator

No. 1€73, December Term, 1976, Snyder, J..

of burglary, theft and receiving stolen prop

erty, anc he appealed The Superior Cour

No. 2366 October Term, 1977, Cervone,

President Judge, 27] PaSuper 250, 415

A2d 390, affirmed, and defendant again

appealed The Supreme Court, No 49%

January Term, 1979, Nix, J., held that: (1)

evidence was suffiGent to support defenc

ant's convietion, but (2) placing defendant

and “his companions in pole vehicle for

purpose of transporting them to scene of

offense, without their consent anc without

exigent circumstances “U support acton

constituted illegal arrest without ‘probable

cause, notwithstanding that sewure Was in-

spired to serve invest gative purposes rath-

er than © arrest’ and charge suspect

of reversed, new

Judgment sentence

ra ewardec

Roterts, J., filed concurring opimon ir

a .

which Flaherty, 2., joinec

, filed dinmsenting opimon

McDermott, J

L. Criminal Law @1144.15(4, 5), 1159217)

Test for sufficiency

whether, accepting as true al) of evidence

reviewed in light most favorable to Com-

monwealth together with al) reasonable in-

ferences therefrom, ter of fact could have

found that each element. of offenses

charged was supported by evidence and in

ferences sufficient in-law to preve guilt

bevond reasonable doubt

of evidence &

i~-

ry " > a

“ aa '. EXMYBIT "A"

rather on evidence actually presented to

finder of fact rendering questioned verdict.

3. Criminal Law @552(1)"

Fact that evidence establishing defena-

ant's participation in crime is circumstantia

does not preclude sonvicuon where evidence

coupled inferences GrawT

‘

therefrom overcome the presumption of ir

witr reasonabie

noce nee

4. Burglary @42(3)

Larcens @*64(7)

Possession of fruits of burglary by ae

ferdan: his companions within biccd

and a half fron f come, wnh bus

clothing and that of his companions in con

with reoent vutll to scene

anc

situs ¢

Giten compahbre

of crume within half an bour of discover)

crime was suffiment © support conviction

of burglary and theft by unlawful taking

5. Arrest @*63.4(1)

"One may not be arrested without prot

able cause .

6. Arrest 6s

defendant and his companons

Placing

“in police vehicle for purpose of transporting

them to scene of offense without Weir cop

sent. constituted “arrest anc Was “secure

of the person” within meaning of Fourtn

Amendment USC.A Const.Amend 4

See publcavon Words anc Phrases

for other ju@Gal construcvoms anc

defiruvions

7. Arrest @= 65

Crimina) Law @394.4(9)

Placing defendant and his companior

in polioe vehicle for purpose of transporting

them to scene of offense, without they cor

sent apc without

constituted illegal arrest. without prodavie

cause and identification of hat dumng ille

ga! seizure should have been suppressec

notwithstanding that secure Was inspired

Lo serve investigative purposes rather thar

to arrest and charge suspect. USCA

Const.Amend. 4

ey ger’ cipcumsia ces

976 Pa

John W. Packel, Chief, Appeals Div.

Leonard Sosnov, Philadelphia, for appellant

Robert B. Lawier, Chief, Appeals Div.,

Mark Gurevitz, Philadelphia, for appellee

Before O'BRIEN, C J, and ROBERTS

NIX, LARSEN, FLAHERTY, McDER.-

MOTT and HUTCHINSON, JJ

OPINION

NIX, Justice

In this appeal appellant seeks in the al-

ternative discharge or the award of a new

trail. In the first instance it is contended

the evidence presented against appellant

was insufficient as a matter of law to sus

tain the conviction The alternative posi.

toon, that at the very least the judgment of

sentence must be vacated and a new tral

awarded, is predicated upon the claims that

the court erred in denying the suppression

motion and the rejection of after<iiscovered

evidence was improper Although we do

nol ackept appellants assertion as to the

insufficrency of the evidence, we do agree

that Neos entitied to a new tra! because of

8m erroneous ruling on the suppression mo

thos.'

On December 15, 1976 at 315 p m Offi-

cer James McCoy, a member of the Phila.

deiptia Police Department, was dispatched

t© 5115 Willows Avenue in response to an

anony™mous cal! to investigate “males with

stolen property in a vacant bouse” Upon

the armval of Officer MeCoy and his part-

ner at the designated premises, they found

stereo equipment, wrapped Christmas gifts,

clothing, pottery and other items. Their

inspection of the scene revealed acriss the

Crveway at 748 South Slst Street a rear

Goor was broken down and that the hinges

hac been broken off Officer McCoy en-

tered the home and found drawers ajar and

items strewn over the floor Approximate

ly 10 minutes after the officers’ arnva! at

the scene, Mr. Harold Bennett appeared and

1. In view of our Gaposition we need not con-

sider the merits of the after-<discovered evs

dence claim

450 ATLANTIC REPORTER, 24 SERIES

identified himself as the owner of 5115 Wil-

lows Avenue. fle stated that he had left

his home between 10:30 a m. and 11:00 a

m. that morning at which time the property

was secured and no one had been given

permssion to enter in his absence. The

examination of the scene also disclosed

trails of footprints in a muddy plot of

ground between Mr Bennett's home and

the rear of the vacant premise. Mr Ben-

nett identified the gucds found in the aban-

doned premise as being taken from his

home

Officer McCoy began to patrol the area

at which time he observed three mailer a

biocx and a half from the scene of the

burgiary. The men attracted his attention

because of the mud on their shoes. Appei-

lant, a member of the tro, had a brown

paper bag in tus hand The officer ap

proached the group and they made oo ef-

fort w avoid the encounter. The officer

asked for identification and the three men

were unable to produce any. The officer

asxed appellant what was in the bag he was

carrying and appellant immediately replied

that it contained a hat Appellant showed

the bat to the officer, at the officer's re-

quest, and stated that he had received it

from a fmend. Is response to @ question

concerning the condition of his shoes, appei-

lant stated he had probably walked through

dirt or a field?

The officer decided tw transport the

Group to the home of Mr Bennett for a

possibile identification Before placing the

men in the police vehicle, the officer con-

ducted a “pat down” search which produced

from one of appellant's companions a nng

and a silver dime of numusmatic value The

complainant identified the hat, ring and

silver dime as being items taken from hus

house. The men were then placed under

arrest and charged with burglary and theft

by unlawful! taking.

2. At We ume the group was approached. they

were standing pear an area of a concrete and

Gri vacant lot In the general area there were

Many Gert rear yards

COM. +. LOVETTE Pa

Cue as, Pa. 450 Ade Ts

After « denial of the pre-trial suppression

motion, appellant waived tra! by jury and

proceeded to tria] on the basis of the evi-

Gence admitted at the Suppression proceed.

ing. The defendant rested without offenng

& defense and was found guilty as charged

Subsequent to the disposition of post-ver-

dict motons adverse to aprellant, a sen-

tence of @ term of imprisonment of four tu

twenty-three months was imposed The

conviction was affirmed by the Supenor

Court sitting en banc dy @ four &

vole? We granted rewew

1. Sufficiency of the Evidence

(2.2) This claim of appellant is euick)s

Gisposed of on the instant record The tes!

for sufficiency of the evidence is whether

acceping as true al) of the evidence re

viewed in the light most favorable to the

Commonwealth, together with al! reasons.

dle inferences therefrom. the trier of fact

coulc have found that each element of the

offenses charged was Supported by evidence

and inferences suffiment in law to prove

Full bevoncd &@ reasonabie doubt Common.

wealth. Ransome, 485 Pa 4% 402 Ad

1279 (1979). Commonweait> 1 Sadusir

44 Pa SRE. 399 Ad 347 (1979) ung Com-

monweaith v. Sulivan 472 Pa 129 149

150, 37) A.2d 468. 478 (1977) See alx

Commonwealth » Horton, 4&5 Ps 115. 0)

AZé 3H (1979), Commonwealts 1 Tone)

474 Pa 23, 378 A.24 310 (1977 Common.

wealth» Rose 4 Pa 264 B44 ADd 824

1975, Moreover, a claim of insuffinencs

of the evidence wil! not be assessed on a

C:minuhed record. but rather on the ev).

Gence actual!) presented ui the finder of

fact rendering the gvestioned verdict

Commonwealth v Cohen, 489 Pa 167. 425

2d 06 (19m Commonwealth v Kue

bier, 484 Pa 358 36) 5°, 399 A.2d 2) , 22?

n° (1979), Commonwealth \ Tadd, 417 Pa

15, 36, 207 A2d BAS. BRE (1965)

Here there is little question that the

Commonwealth produced ample evidence

for a finder of fact to conclude that the

premines at 748 S Sist Street had teen

burglarized and that there was @ theft of

3. Judge Spaeth joined by Judge Hoffman con

Cludec thal the suppression mouon shoud

1s contents. Appellant does not cha! enge

the proof of the fact of the burglary or the

theft but rather focuses upon the evidence

offered to establish his participation. Ap

pellant characterizes the evidence in this

regard as merely estabushing “appellant's

presence with two men. one of whom wh:

possesseo stolen property, not visible 1 ate

pellant, which had heen taker in a burglar

committed sometime earlier that dev. anc

appellant's possession of & hat whict Was

Simuiar % one taken im that burplan

Aptellant takes too narrow @ view of the

Commonwealth's endence Presented to es

Yabiish Dus guilt At tral Mr Bennet: tes:

vec the hat as having teen taken from «

bureau Crawer ir hu dir ng room That

the hat mere!y resembied a hat taken fron

the house during the burplary was an infer

ence that tne defense uryed the fact finde-

Graw However, the fact finder was

ObVious!y free to accept Mr Bennett's nox

tive statement that the hat was in fact tne

Pins

one removed from the ¢ That one «

Sppeuanrts comparuons ea

Gefinitels

Waer Guring the same OUrgiary provider a

basis for finding the two men as te ng

coparuicipants It uncuestionably refute

the defenses charge that the evidence

mot establish anv relationsh:r

BMC the other two males he was star ang

with Off

80% property Wentul

tel¥eer fin

wher cer M

The condit

consistent with having traversed the ares

between the burgiarized home and the va

Cant properts

approached

m of the shoes of the tric was

{3 4) The fact that the evidence exwu!.

lishing a defendant's participation in 4

not

Coupred wit)

the reasonalie inferences drawn therefor

overcomes the presumption of

Commonwealth 1 Sullivar

monwealth

preciude a

crime is circumstantial oces

CoOMVichion where the evidence

innoce hce

Supra, (Cor

\ Farquharson, 467 Pa 50. 3%

A.2d $45 (1976), Commonwealth v Cox 464

Pa S82, 355 A2d B44 (1976). Common.

wealth \ Petrisko, 442 Pa S75, $80, 275

A.2d 46. 49 (1971) See also. Common.

have been gramed and Una: appellant was env

Ued to # new Uriel

978 Pa

wealth v Tinsley, 465 Pa 329, 350 A.2d 791

(1976); Commonwealth v. McIntyre, 45) Pa

42, $7, 3) Ald SZ, R54 (1973) We are

satisfied that the possession of the fruits of

the burglary found on the appellant and his

companions within a block and a half from

the situs of the crime, with his clothing and

that of his companions in a condition com-

paridle recent visit to the scene of

the emme, within a half an hour of the

Giscovery of the emme supports a finding of

guilt Thus the sufficiency of the evidence

claim May properly be Cismissec as being

without substance

wrth

Both the Commonwealth and the

omty of the Supemor Court agreed that

the police cid 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

tems taken from his companions as having

teen waaen from the burglarized premises

Ip thes jumsdiction it is clear that one may

not te arrested without probable cause

Commonsealts v tiett, 486 Pa. 3y6. 406

at 340 (1979), Commonwealth v. Stoxes

480 Pa 38, 389 AQ (1978), Common-

wealth » Dickerson, 468 Pa 59, 364 Add

Legality of the Arrest

{5}

ma,

”

877 (2976). Commonwealth v Farley, 468

Pa 487, 364 A2d 2% (1976); Common-

wealth v Culmer, 463 Pa 189, 344 Ald 487

(1975), Commonwealth v Jackson, 459 Pa

665, 32) Ald 189 (1975), Commonwea/ta 1

Ruse, 459 Pa SS, 328 Aza BO (}974) We

have defined an arrest as any act that ind.

cates ah intention to take the person ini

custody and subjects him to the actua! con-

trol anc wii] of the person making the ar-

rest. Commonwealth v Bosurg, 411 Pa

5€, 190 Ad 306 (1963) See also, Common

wealth. Nelson, 488 Pa 148 41) Add 740

(1980) cnng Steding v Commonwealt>, 480

Pa 485. 39) Ald 989 (1978) and Common-

wealth v Brown, 230 Pa Superior Ct. 2)

326 A 2d 9 (1974), Commonwealth v Silo,

480 Pa 15, 389 Ald € (1978), certioran

denied Silo v. Pennsyivanisa, 49 US 1132,

9 SCt 1053, 59 LEd 24 S44, reheanng de

nied 440 US. 969, 99 S.Ct 1522, 59 LEd.2¢

TBS (1978): Commonwealth v Richards, 455

Pa 455, 327 Ald 63 (1974)

450 ATLANTIC REPORTER, 24 SERLES

The question raised is whether placing

appellent in a police vehicle, after a “pat

down” search and transporting him w the

scene of the burglary constituted an arres:

There is no dispute that the officers intend

ed to exercise control over appellant and hi:

companions at ieast unti] Mr Bennett hac

an opportunity to sew the objects found :-

ihe? possession

Mat appenant voluntarily accompanied the

officer to the scene of the burglary See

eg. Commonwealth v. Richards, supra

There is no contentior

{6} Under al! of the circumstances. it is

ciear that the placing of appellant and his

companions iD the poice vehicie for the

purpose of transporung them w the scene

of the offense, without their corsent, con-

Stituled ab arrest as that term has been

tefined uncer our cases. It is equally true

that police action was a seizure of the per-

son within the meanmug of the Fourth

Amendment of the federal Constituuon

Michigan v. Summers, 452 US 692.

S.Ct. S587, LEd2d 340 (1981,

Conceding

wht

4Ui

umplientiy, the longsunding

tradition in this Commonwea!th that an ar

rest must be supported by probable cause, it

is eing urged that the seizure is constitu-

tionally permissibie and that the law of th:

Commonwealth must accommodate this le

@itimate effort to enhance the capabi!ities

of law enforcement to deter, to ferret

anc © punsh thee who woud disregard

We are satisfied that the const,

tutional validity of the instant seizure is at

bes: Gudvous and that it does not warrant a

Geparture from the longstanding tradition

(hat an arrest must be supported

ble cause

Traditionally, i: was accepted that sei-

tures of the person were required by the

Fourth Amendment to te based upon prot

adie cause This principie was followed

without exception. Geistein v Pugh, 420

U.S 103, 95 S.Cz S54, 43 L.Ed 2¢ 54 (1975),

Beck v. Ohio, 379 U.S. 8, 85 S.CL ZB, 15

L Ed. 2d 142 (1984), Henry v United States,

361 US. 0. 8 SC: 168. 4 LEdod 144

(1959), Johnson v. United States, 3! U.S.

out

our laws

DN proba:

COM. v. LOVETTE Pa

Cie as. Pa. 480 Ade 975

10, 68 SCt 367,92 LEd 436 (1967): United mers. supra. 652 at 649.101 SCt at

States v. Di Re, 332 U.S. $81, 68 S Cr 2 LL. Ed 2 a: 38s

’

Bd 210 | -, " , trey 4

tA ] 1s Carrol) v United However, the Court has admonished us tu

States, 267 US 132, 45 SCt. 20, 69 LEK

LES te mindful that the Terry principle is ar

es 7% ~ ‘ '* ae 7 - ‘ . ates aed =

wa (1904) «See aso, United States Ex Re! except : . . 7 an’

‘ 4 f uu oc ene } *

Wright ‘ Cuvier 563 F.2d 627 (3d Cis t : a Pure requiring

sQr* talent Gnas 5 P ; prousdie Cause anc must not be extended ir

19). Cnitec States « Embry, ME F.2 aaeall

ae Ey. uch @ fa Das tosw mw therwe Dur

S52 (3d Cir 197€ ‘ ‘ i. %

sat ua ev 2OFAR. SUN a” s/uUhawat the

he np-prevailing standards” of nro!

j gopres g ttancarc + proba Ourt stressec the imporunce of the gener.

Die Cause Emteaciec “ine teat compromise ~

, &! rule re “ng propabie cause to satis!

that has been found for accommadating . , ;

on = € reasonabiene e he Fourth

‘ en Opposing interesis in “safe S nenden

4 <

gGuarc. ing) cituzens from rash and unrea -

¥ nee — " .

sorahe nterferences woth pmvac ar ‘ ~<a ‘ e r)

@<ause re rem t; . yet *\.0Fr

mn “seek ing) to pve fau leeway for er yee xa mer

. ne 04 ee om , .

forcing the law in the community's pre oF 4 ; 2 ‘ cme

Fousth Amendmes sear ne

tector Brinepar \ United Sua 36 . < & Sar ae -

re 34 a ‘ ro A he sabtLadheat P as o ur ne

. . % 9S & BA IBY, SG S se ‘

‘ -” . A , ve "emer? , ° ° , » s eee rons

a¥4y she Stancarc of protabie cause 4 a :

> ‘ * - hy .

thus represonted the accumulated wisdor that are Ove ur Pust Henn

; Cnsted States AE. USO LO ELE

of rececent anc exrenence as u“ the af Sa A ao

i a > . ; » é > . .

minimum justificaton necessary to make | ctv Hos 7

the bor f \mtruson pry ved in an are “ me sex ere eu war a

_-—-~ , - fnew + ‘ .

“reasonabie under the Fourth Amer : , ne & f tne

t -- i“ o 4

. r, eae ; 0 er . ? beh r

ment The $tandar applied to a!) ar ‘ é Os mre

rests, without the need to “balance” the ate after ita adoption affirmed tha

interests and circumstances involved ir MMon rumor OF repfor, sust ° ?

part a siiuathon Lf Camara vy M ever “Ong reasor ‘Spe war f

ieiiwee. | < af 3s‘ us « 78 1 Ee x ¥ eue sae prom & Varrar for ar

87 S Cy 3727 (1967 rest” ic a 4 Ed 2c at 238, 8 S

, ‘ lar ge 0° Ow . at 17 winotes omitte The ¢

/unaus ve@ fora oh. | oF, al _

9 $ . 2o45 pacts | ‘. L Ed.& a 197% be a’ Pres? , Ssianca pmoahie

Tre ices 2uM Fourth Ame nent Seilures ee

The rst recogt the Foust:

ans fiects the bene! ewler € evrenmence

reasonat recuiremen'

womecating the ¢ o at 8

Cou te satisfied | & showing f gore ¥5 , . ee ore

. the “reasor eness PecLirers ’ ‘

“ing mm han probabie cause Was ar : : ‘

eth Amendmer _ .

nouncec Db the Loated States Supreme . Are € ar ; ¢ * re

Court ln Terry v. Obie. 00 US 1 oe 8! ative simplicity and clarity necessary

. ** * * , *

1868. 2D LEd 2d BRS (19468 he Term he implements of a workable rule

decision and it * stated “that some ose Srineger INES OMENS, SUT ~~

US) at 1% 176 9 Eo 18% eS

seizures admit covered by the Fourt? — : P peng

+ en

. Amendment ¢ such limited intr opis

’ ’ 4 ‘ . 4

SONS OM Lhe persona security of those de at = ad oo

tainec and are justified by such substantia In tts analveit in this case the Come

a“ enforcement inverests that they may te Waasith Slreases the us " Prima’ ives

made on less than probable cause. so jong as = tigations that i pr ec >) these seuwrure

police have an articuable basis for sus without the need for establishirg probable

ing cmminal activity" Michyan cause This ignores the clear!) cefined x

4 See Michigan » Summers 452 US 692. 10! 873. 98 SCa 35°4 48 LEBod @° g7s Ao

SCi 2587. €9 L Eade MO (198!) Penna ams) Wulams 40° US 143.92 8G. 192). 32

Atiumms. 434 U.S 106 98 SC. 390 Me LES 2e¢ L£a2e €12 (19

980 Pa

for ascertaining the appliability of the prob

able cause requirement. “ | [T)n order to

decide whether {a} case is controlled by

the genera! rule, it is necessary to examine

both the character of the official intrusion

and its justification” [Emphasis added }

Michigan v Summers, supra, 452 US at

701, 10) SC at 2895, 69 LEd at 348-49

Using the proper analysis we cannot con.

clude that the instant sewure is 90 clearly

within the Terry exception as to warrant a

deviation in this case from this jumsdiction’s

longstanding rule of arrest based upon a

proper showing of probable cause

Because the seizure was inspired to serve

investigative purposes rather than to arrest

and charge the suspect dors not, by that

fact alone, justify application of the Terry

exception Dunaway » New York, supra

“(Tp argve that the Fourth Amendment

dues not apply to the investigatory stage

is fundamentally to musconceive the pur-

poses of the Fourth Amendment I pves-

igetory sewures would subject unlimited

numbers of innucent persons w the

harassment and ignominy incident to in-

vouuntary detention Nothing is more

clear than that the Fourth Amendment

Was meant Ww prevent wholesale intry-

MOMS Upon the personal secumty of our

cituenry, whether these intrusions te

termed ‘arrests’ or ‘investigatory deten-

tions.”

Davis v Mississipp:, 24 U.S 721, 726-27,

89 SCu 3384, 1397, 2 L.Ed 2a 676 (1969)

A sumilar argument was again rejected in

Dunaway where that Court otpemed

In effect. respondent Urges us to adopt a

multifactor balancing test of “reasonabie

pouce conduct under the circumstances”

40 cover al) seizures that do not amourt

intended by the Framer could ai) too

as.) Cuappear in the considersuon and

balancing of the multifarious circum

stances presented by different cases, es-

pecially when that balancing may be done

in the first instance by police officers

engaged in the “often competitive enter.

prise of ferreting out ernme” [Citation

omitted.) A single familiar standard is

450 ATLANTIC REPORTER, 24 SERIES

qmsential) to guide police, who have only

limited time and expertise to reflect on

and balance the social and individual in-

terests involved in the specific cirrum-

stances they confront. Indeed. our recog:

nition of these dangers, and our conse

quent reluctance to depart from the

proved protections afforded by the gener.

a! rule, are reflected in the narrow |imita-

tons emphasized in the cases employing

the balancing test [Footnotes omitted

Id, 442 U.S at 213-224, 99 S Cr at ast

The Terry exception has been most fre

quently applied in instances involving mere

ly an involuntary detention, see, eg Com

monweath v Anderson, 48) Pa 292, 29.

Ald 1208 (1978), Commonwealth +. Jones

47s Pa 364, 378 Ald 835 (197%), Common

wealth v. Mimms, 47) Pa 846, 370 A.2d

1357 (1977), Commonwealth v Bailey, 4

Pa 4968, 33 Ald BR (1975) Common.

wealth v Richards, supra, Commonwea/t>

v Pollard 450 Pa 138. 9 Ald Be 1973

Betrand Appea! 45) Pa 381, 309 Ae 4a6

(1973), Commonwealth v Garvin, 48 Pa

S58 2 A2d DB (1972), Commonwealth +

Hicks, 4 Pa 183, 23 Ald Wb (1989)

Here we have the added element of « trans

poriavon of the suspects from the piace of

the imtial enenunter without exigent cir-

cumstances t suppor that action The

police had the option of detaining the sus.

pects at the site of the initia’ encounter and

either Deinging the complainant to the site

for his identifiestion of the questions! arti

Clee of taking those items to him. = E.ther

Hivation Would present a much stronger

came for the position the Commonwealth

presentiy urges The Commonwealth

stresses the limed area traversed in the

transportation of appellant. This fact on!

highlights the ease with which the identifi-

cation could have been made without the

movement of the suspects, which increased

the intrusiveness of the encounter, The

instant factual situation ts also illustrative

of the uncertainties attendant to any at

tempt to expand the Terry exception and

reinforces the wisdom of serupulousiy ad-

hering to the narrow scope of the exception

Dunaway » New York, supra

COM. v. METZGER Pa G8)

Cv wm Pe 0 Ace

[7] Consequently, we must conclude

that the constitutional validity of the se.

ture of the person of appellant in this case

is at best dubious Since the seizure un-

qQuestionably constituted an arrest as

Gefined in this jumadietion which requires

probable cause, we are not persuaded that

we should. on this record, depart from that

longstanding respected precedent Accord.

ingly, we nolc that the seizure of appeliant

without probable cause constituted ar ille

fa! arrert and that the identification of the

hat dung that iliepa! seizure should have

been suppressed

The Judgment of Sentence reversed

ands new tral awarted

ROBERTS, J., filed a concurring opinion

FLAHERTY, J., joined in this opinion

and the concurring opinion of ROBERTS. J

McDERMOTT, J

. flied & dimenting opin-

ROBERTS. Justice, concurring

] agree that the seiure of appeliant and

the admustion into evidence of the fruits of

that uniawty! arrest constitute » manifest

violation of appellant's Fourth Amendment

ments Indeed the Commonwealth con-

cedes thal appellant Was seved without

provable cause

Where as here the police restrain a per

son's freedom of action beyond the pemad

of time required to effectuate a Terry stor

BNC without probabie cause W arrest, it i

ef no constiutional significance whether

that restraint w accomplished by detaining

the person where he w initially encountered

or by transporting the person to another

locatior, In both circumstances, there is ar

uniawiw arrest, @ violation of the Fourth

Amendment Dunaway v New York 442

1. See Terry vt Oho 192 US 1.68 SCr 1068

20 L Lé2e Bas () ate)

2 I note in passing thet appellant will be unable

10 enjoy the largesse of Khe Court in ewarding

him @ new tral because he died nearly two

yeart prior to Ue argument ) Ue case That

eppeuam s counsel never bownered to inform

the Court of uus fect. Gemonswates enher

Cytica) disregard for Une chents parucpauon

US 2, A616, 9 SCi 24s, B3-s8

(1978)

FLAHERTY, 2. joins ip this concurring

Opinion

McDERMOTT, Justice. dissenting

1 dissent

Stripped to ite essentials, the majomts

holds of seers te hoid that, had the police

Drought the comp.ainanm, to the suspects

anc not the suspects to the complainant, the

Pesult would te different See at Ga

The distance travelied in either instance

wat at most as biock anc a half That a

black and a half might swallow the "Ter

exception” w the type of finicry precious

nest tbat has solidified our reputation for

unreality |

I would affirm the order of the Superior

Court!

——EEE

COMMONWEALTH of Pennevivania

Appeliee

‘

Diane Hamill METZGER. Appellant

Supreme Court of Pennevivania

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Arguec Apri) 23, 1982

Decided Oct 5, 1982

Defendant was convicted tefore tne

Coum of Common Pleas Delawarn Count)

Criminal Division, at Nos 4400 AK. De.

cember Sessions, 1978, Robert A Wrign: J

wm Ue appea) process oF & thanking atiempt to

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fauure te nour We Coun of appellant's oes

brings to Ugh @ sister and rapidly expanding

tide of the crvfuna! jusuce yetem in which

lawyers parede about and arpve and delay for

thei own benef, while truth and fairness and

even Une cents inieresis are forgotien

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Death Verification form attached hereto as Exhibits A and B

respectively.

3. The rule in the federal courts ané a larce number of state

jurisdictions is that a criminal appeal should be dismissed when the

defendant dies while direct review of his conviction is pending. See,

@.g¢., Dove v. United States, 423 U.S. 325 (1976) (certiorari petition

Gismissed); Durham v. United States, 401 U.S. 481 (1971 (appeal abated);

List v. Pennsylvania, 131 U.S. 396 (1886) (appeal abated); United

States v. Janney, £25 F.2d 1208 (5th Cir. 1976) (abates ab initio);

United States v. Toney, 527 F.2d 716 (€th Cir. 1975), cert. denied

sub. nom., 429 U.S. 838 (1976) (ab initio); United States v. Moelenkams,

557 F.2€ 126 (7th Cir. 1977) (ab initio): United States v. Littlefield,

594 F.2d 682 (8th Cir. 1979) (ab initio); United States v. Bechtel,

547 F.2d 1379 (9th Cir. 1977) (ab initio). See Annot., 9 A.L.R. 3c

462, $11 at 496 (and supplement) (collecting both state cases dis-

missing appeal anc cases abating proceeding ab initio); Annot., 83

A.L.R. 2c 664, §2 at 664 (and Later Case Service) (same).

4. Notwithstanding the foregcing, this Court has hel4 that the

Geath of a criminal defendant does not abate his appeal. Commonwealth

Vv. Walker, 447 Pa. 146 (1972) (Justice Nix concurred in the result

and Justice Pomeroy dissented). The Commonwealth urges this Court

to adopt the reasoning of Justice Pomeroy's dissentinc opinion;

i.e., that the death of defendant renders his appeal moot. This is

the view of the majority of those federal and state courts which have

considered this issue.

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WHEREFORE, the Commonwealth respectfully requests that this

Court abate the above-captioned appeal, or, in the alternative, list

this matter for full Court argument.

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Bhors cer the

Yaetatat bo ate trict Attorney

GAELE MELAUGHLIN BARTHOLD

Assistant Chief, Appeals Division

ERIC B. HENSON

Deputy District Attorney

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