# Opposition — Pennsylvania v. Lovette > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0019%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1983 - **Citation:** 459 U.S. 1178 ## Text Supreme Court Us FILE Db 82-918 DES 80 1982 cig 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. 2d Ct. 1060 (1976) 651 (1909) linn lé 13 14 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 P 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 1 Sadusir 44 Pa SRE. 399 Ad 347 (1979) ung Com- tw 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 Nv 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 ‘ * - 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. | ) 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 33) (1977) US © Brgnom-Ponce, 422 U.S 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 t© echnical arrests But the protections 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 wn . 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 © | rece Tre» COMMONWEALTH of Pennevivania Appeliee ‘ Diane Hamill METZGER. Appellant Supreme Court of Pennevivania '“ 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 Geceive Wut Coun in ener even counsel s 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 _—_ ww «* . ece . C« Gied art *-* ‘ > ’ , ‘ I ; reé ar ' ’ ees “\ wT « ; aval nee ré , ; ce i« : *> ee ’ ‘ vr. ar mY ~“* ' . . ; a. ; ‘ ay * 1 - y 4 _ >>" ry , LNNOLS CT TERM if P ee Py oF > ? . > ‘ appeal n P ‘ , 7 ‘ ‘ ‘ f awar “ . ’ fae 1o°79G ; . Aue Mart » . @ oe ‘ -f Love ° w rmati *> « +, + ‘ at eat ~ @ . "+ ‘ te A A, ‘ , “+ sz tn rti ; té #-. ‘ ‘ .« > i.e r 4 . e : ‘ ‘ . ‘ >» ”~ t ‘ .” . . e s . 9 va , . . ore . ° e ets - —_, . : ott s .- - qe™ 7 a ee ee | tur . POs. .! QFP SM ..53. costed Sse hS ects... § : a eee UR ¥ 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. er ee eee “~~: ; c om, . asst Oh a - atute. ‘ ’ = ¢ , Gis * ‘ ve eunpr 1 r, sup: Saat 4S > arae _ Le ; tate o> -_ bAL ‘ , oeds > . é ’ ”“ * ; . ‘ r me - ot , ap, ther a ‘ ,c sa > > ‘ ‘ + oe r ¢ e Wa acter tate rer ext anc mwe rT. 4 . . > . WHEREFORE, the Commonwealth respectfully requests that this Court abate the above-captioned appeal, or, in the alternative, list this matter for full Court argument. "av yr mirted, My : 1 Bhors cer the Yaetatat bo ate trict Attorney GAELE MELAUGHLIN BARTHOLD Assistant Chief, Appeals Division ERIC B. HENSON Deputy District Attorney Tere arr te kaw FI PrVNnsy a - we aad 2 - Se Meal * Awe COMMONW -* ors) wrrTanrr. pa PHILADEL: a. . ~e “my hho it ain Sheen aee Mate we ww wet io Cc ‘he hh oe —s eS . DEATH VERIFICATION INVESTIGATION P oisTrict aA 7*OCMANE ‘ orr t Ovi rw ¢ t core ; mis orm 18 °O Be wsed By the Uist t Attorney s Vetectives te ! tote the inves! gotion one verificotor ‘ne dect? clo wicti, w.tness oF dGetendon’ ' +8 not necessarily to be usec « eptec ir ev cf o Deoth Certilicote DCECEOENT INFORMATION owe ee | see o ' se . * meee . wate or ane F rase NF ORMATION “2 te ee ~ ¥ . wf ‘ ‘ ’ vee ATION NF ORMA TION . ‘ ° ‘ . ‘ ~ ‘ ‘* , . ‘ ove ‘es > ‘* ‘* . ‘ enre . ‘ cere e . vt xe . ‘ . eee fd vvevy Ey ry — — : —_— PUNE MXM EAY NEEXIEY XEN MAYER YT ere MO CCEEteE ee es* oe - ~*7E veairiec "sa tea C°RCT IVE Signeiure ” a on > . . . ° . . SF - 5 * OCLTECT WE SUPE eV AOS Signeiwe v TLE ~ * > . . . > 1.23 . - ES oc Sere oe OmsTMieuTiOn |}. DA CASE FILE 2, ROR, AGENCY 3, CL EMR QUARTER SESSION 4 040 @ECORC Best Copy Available "SL Oi 490/30 COM"O, PLEAS AND AHUNICIPAL CATE UT/Z0/¢ RO0s * COURTS OF PHILADELPHIA PAGE 1 : COURT HISTORY WA4E= LOVETTE ANDRE PULICE 1120 S$ 54Th STe 5209: OwILA. On 19160 SEX RA, » N BIRTH OAT 10/03/57 Act OT COMPLAIL 41 #9 RECe CNTALe 8 JUOGE ATTORNEY LOTLS?76 76-12-44063 “MCT6N7T-1591 1/71 LEHKERe S M 5G&207¢ THEFT UML TAK/CISP PRE=-IND. PROB./ARD THEFT REC STOLEN PROPERT PRE~IND. PROB./ARD UNAUTH USE AUTO OTHER VE PRE~IND. PROB./AR® ACT1L S76 7512-44063 “C 7607-1581 1/1 OOTY, E A S1006476 THEFT UNL TAK/DIS®? POS w/0 W/0 PREJUDICS® THEFT REC STOLEN PROPERT PPUS w/0 W/O PREJUVICE UNAUTH JSE AUTO OTHER VE PROS W/0 W/0 PREJUDICE AOTL@l6 Té-12-46063 MC7T607-1582 1/71 HARRIS,» K 5S SOT1L676 KNOw/POSS CONTROLLED SUB DISMISSED PREL ARRAIGNMT A102476 76-12-65995 4C74510—2642 1/1 CUMMONWEALTH / o DEF. ASSOC. SLIOSTA KES ARST LAW ENFORCEMENT PRE- IND. PROB. /ARD NISCROERLY CONDUCT PERS] PRE~IND. PROB. /ARD S1LZ21676 W-12—-76170 MCT612—-1261 171 POSERINA, J J DEF. ASSOC. Sl2227% CRIMINAL CONSPIRACY OISCNARGEO/OISMISSED THEFT Uuwb AK/UISP A1LZL676 7T6-12-76170 CP7612-1673 1/1 SNYDERe 8B OEF. ASSUC. SOVLIL77 BURGLARY WAIVER GUIL SENT. IMP. MIN LESS 1 YR-MAX 2 YRS {HEFT UNL TAK/OILSP WAIVES® GUIL SENT. IMP. MIN LESS 1 YR-MAX 2 YRS THEFT PEC STOLEN PROPERT WAIVER GUIL SENT. IMP. MIN LESS 1 YR=MAX 2 YRS INFCPMATI OW INDICTMetel EXHIBIT "Cc" ° . . B%: 9 : c . : omk vl / for CLMALN Pleas ate AUNIL TP ad «Gan COUKTS OF PHILADELPHIA q is COURT HISTORY CLATINVEL= LOVETTE ANDRE "TLLE76 76-10-74910 CPPOLI<1L75% L/L SILVERSTEIN, P SJ51°77 2CREERY GUILTY PLEA NEGOTIATED INFURAMaTIGN LNOLCTMENT A032477 Tl-1L2—-159434 “C 7705-2342 1/1 SIMMONS» JRee J S2e237T7 KNOW/POSS CUNTRULLED SUB PI O8 W/0 VERD-SEC 17 SOTOOTT Tl-L2—@Ue646 CPTTO7T=$1279 2/2 SILVERSTEIN, ® S"99O 177 ROABERY NCLLE PROS CRIMINAL CONSPIRACY NOLLE PROS LiF ORMATION INDICTMENT AOT29S7S TG9-0O9—40 Tei “{ 790 7-2 715 1/1 GORUVON, L 572979 GAFELING CEVICES/GCASBLIN DISMISSED PREL ARRAI GW avon eM tT ONG oC ee me te ee me ie ie i oe Gee ae - MICRO -IL"4 RECe CNTELE JUDGE - «- ae - - - -_ = - — - - -~_ -- =—-— —- «— - « - - 6cc oc CP7612-1573 1/1 SNYDER,» B ¢* @*s Vale DEF. ASSIC. PROBATIUN=4 YEARS DEF. ASSOC. MAXYMUIK, D My REPORT 1 N PRE=SENTENCE PSY COMPLETION OT COM 2/28/77 VIse0/ PAGE 2 F 0 -« CHIATRIC PLETION --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0019%3A3. Public record. Not legal advice.