Petition for a Writ of Certiorari — Blum v. Pennsylvania

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BUPREME ( Te U. » E

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IN THE MITEL LOOSE, 12. Cree

Supreme Court of the United States

° October Term, 1971.

newe. No. * | 7 14440

. SHARON BLUM,

Petitioner,

v.

COMMONWEALTH OF PENNSYLVANIA.

PETITION. FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA.

Stanrorp SHMUKLER,

1616, One East Penn Square,

Philadelphia, Pennsylvania. 19107

Awan D. WriuiaMs, Jr.,

50 East Court Street,

Doylestown; Penrsylvania. 18901

Counsel for Petitioner.

International, 711 So. 50th St., Phila., Pa. 19143—Tel. SA 7-8711 Area Code 215...

OPINION BELOW

ree eS TT Te TREC Te reer eT TT

QUESTIONS PRESENTED ............ PETE ee eee eee

CONSTITUTIONAL PROVISIONS INVOLVED EP Eee PT re ee

ree Gh I TA akc 5s ss en ic de eo ecisinanyas

Legal Proceedings .......... BES ie NT nn ee”

Summary of Evidence on Pre-Trial Motion to-Suppress

Summary of Evidence at Trial .......... errr re te

REASONS FOR GRANTING.THE WRIT ............--+e0e00-

1. The Court Should Decide Whether the Warrantless

Search in This Case Violated Preston v. United States,

as Interpreted by Chambers v. Maroney and Coolidge

a. Se err rer rere enere kas

2. This Court Should Decide Whether Driver of a Car

Who Is Not the Owner Has Standing to Centest a

Search of the Car at the Police Station Subsequent to

Oe RE ory cs pe eee evecare eee

3. The’Act Under Which the Appellant Was Sentenced:

Unconstitutionally Discriminates Against Women and

the Sentence. Imposed on Her Was Illegal .........

~ CCEA sic oes cee citenseeas A pee EES Freee Oe

APPENDIX:

Order of the Supreme Court of Pennsylvania on the Peti-

tion for Allowance of Appeal From the Judgment of

the Superior Court of Pennsylvania .............. .

Judgment of the Superior Court of Pennsylvania’........

Opinion of the Criminal Courts of Bucks County ........

Order of the Criminal Courts of Bucks County .........

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TABLE OF CASES CITED.

Page

Barnett v. United States, 384 F. 2d 848 (5th Cir. 1967) ..... - 20

_ Beck v. Ohio. 379 U. S. 89 (1964) 2.0.0... cece e ee eee eee 13,19

Brinegar v. United States, 338 U.S. 160 (1949) .......... 19

Carroll v. United States, 267 U: S. 132 (1925) ............- 19:

Chambers v. Maroney, 399 U. S. 42 (1970) ...... 10, 15, 16,47, 18

Chimel v. California, 395 U. S. 732 tc ere peat 14

Contreras v. United States, 291 F. 2d 56 (9th Cir. 1961) .... 20

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ..10, 15, 16, 17, 18

Cooper v. California, 386 U.S. 538 (1967) .......... 10, 15, 16, 17

Commonwealth v. Blum, 210 Pa. Super. 529, 233 A. 2d 613

ER Re one Secured te ee en ree 5

Commonwealth v. Cockfield, 431 Pa. 639, 240 A. 2d 381

ER a gen oo awe aol ote en ad ne a can ate ate ain Weare 15,18

Commonwealth v. Daniels, 430 Pa. 642, 243 “A. 2d 400 (1968)

= 5, 6, 23, 24

Commonwealth v. Dusseil, 214 Pa. Super. 1, 248 A. 2d 857

‘(| ere ike ee ok a eeh aa Ce ee ee amis 21

Commonwealth v. Gordon, 431 Pa. 512, 246 A. 2d 325 (1968) 18

Commonwealth vy. Harris, 429 Pa. 215, 239 A. 2d 290 (1968),

reversing 209 Pa. Super. 27, 23 A. 2d 881 (1966)

14, 18, 21

Commonwealth v. Ellsworth, 421 Pa. 169, 218- A. 2d 249

ER ose ae ini oh CE ea ig TEA IRIs eee aa NREL ROR 14, 18

Commonwealth v. One 1958 Plymouth Sedan, 380 U. S. 693

(1965), and 418 Pa. 457, 211 A. 2d 536 (1965) - ese Sree 19

Commonwealth v. Pinno, 433 Pa. 1, 248 A. 2d 26 (1968)°.... 21

Commonwealth vy. Smith, 201 Pa. Super. Su, 193 A. 2d 778

NES Ae vntnne Sou eke RW one a ean Sata lee tan a a

Commonwealth v. Williams, 219 Pa. Super. 109, 280 A: 2d 430

- (1971)

Cotton v. United States, 371 F. 2d 385 (9th Cir. id re

Davidson v. State, 252-So. 2d 108 (Ala. 1971)

Diaz-Rosendo v. United States, 357 F. 2d ail (9th Cir. 1966) 20

Dyke v. Taylor Implement Mfg. Co., 391 U. S. 2416 (1968) . 14

Glisson v. United States, 406 F. 2d 423 (3th Cir. 1969) . 21,22

_ Hebron v. State, 281 A. 2d 547 (Md. Ct. Sp. App. 1971) .... 22

Pern 22.

TABLE OF CASES CITED (Continued).

eo Page

-_ Heffley v. State, 423 P. 2d 066 (Nev. 1967) ............. “no

Henry v. United States, 361 U. S. 98 (1959) ..........00.. 19

James v. Louisiana, 382 U. S..36 (1965) .................. - 14

Jones v. United States, 362 U. S. 257 (1960) ..,.-10, 19, 20, “oe 22

Kaufman v. United States, 10 Cr. L. 2343 (8th Cir. 1971).. 17

Lanford v. People, 489 P. 2d 210 (Colo. 1971) ............ 22

Ker v. California, 374 U. S. 23 (1963) .:................. 13

Mancusi v. DeForte, 392 U. S. 364 (1968) ............... 21

Miranda v. Arizona, 384 U. S. 436 (1966) ................ 13

Mozzetti v. Superior Court, + Cal. 3d 699 (1971) .......... 16

One 1958 Plymouth Sedan y. Pennsylvania, 380 U. S. 693

I sage a des oO ee ie oo 15

_ Palmer v. State, 10 Cr. L. 2455 (Md. Ct. Sp. App. 1972) . 22

Paxton v. State, 303 N. E. 2d 63 (Ind. S. C. ee - 22

People v. Joshua, 169 N. W. 2d 105 (Mich. Ct. App. 1971)... 23

Peopie v. Lewis, 7 Cr. L. 2297 (N. Y. Ct. App. POP caves 160

People v. Sullivan? 29 N. Y. 2d 69 (1971) ............. eee

People v. Witherspoon, 8 Cr. L. 2262 (S.C. Mo. 1970) ..... 16

People v. Woods, - Pewee Ce PE)... 16

Petty v. State, 411 S. W. 2d 6 (Ark. 1967) ............... 16

Plazola v. United States, 291 F. 2d 56 (Sa Ce. 09) ...... 20

Preston v. United States, 376 U. S. 364 (1964)

10, 11, 12, 14, 15, 16, 18, 19

Rios v. United Chae. me 8. oo ee CP ... .......... 19

Rudolph v. Commonwealth, 10 - L. 2252 (Ky. Ct. pp. 1971)

16, 17

Simmons v. United States, 390 U. S. 377 (1968) ........... 20

Simpson v. United States, 346 F. 2d 291 (10th Cir. 1968) .

State v. Criscola, 21 Utah 2d 272 (1968) ................ . 16

saute vw. Dell, 256 La. WS (152). ............... >... 16

State v. Dombrowski, 44 Wisc. 2d 486 (1969) . Ei wigis Bien uae 16

State v. Holloway, 187 N. W. 2d 85 iS. : | ee 23

State v. Oliver, 273 A. 2d 867 (Conn. 1970) .............. 23

State v. Russo, 470 S. W. 2d 164 (Mo. 1971) ............... 22

State v. Tosatta, 107 Ariz. 231 (1971) .

PSS ae s ¥ mi ‘ ns

ener

PSII ERT MATTE ne 90 FA OR Reh ete ote Nets

Peemerre seems: =

Sea PN vavee

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itso uae, “Cw a” Wo os jE Bent ER Biles iB, IEP tA PIS AL DIO

TABLE OF CASES CITED (Continued).

. ) Page

State v. Wilson, 106 Ariz. 411 (1970) ......... hanes oe

Stoner v. California, 376 U. S. 483 (1964) ....0........... 12

United States v. Cobb, 432. F. 2d 716 (4th Cir. 1970) ...... 22

United States v. Colbert, 10 Cr. L. 2445 (5th Cir. 1972) .... 16

United States v. Collins, 439 F. 2d 610 (D.C. Cir. 1971) .... 17

United States v. Day, 331 T°. Supp. 254 (E. D. Pa. 1971)... 17

United States v. Day, 10-Cr. L. 2445 (6th Cir. 1972)........ 16

United States v. Dento, 382 F. 2d 381 (3d Cir. 1967) ....... 17

United States v. DiRe, 332 U. S. 581 (1947) .............. 19

United States v. Golembiewski, 437 F. 2d 1212 (8th Cir. 1971)

i7, Ze

United States v. Julian, 10 Cr. L. 2138 (10th Cir. 1971) .... 18

United States v. Merteke, 11 Cr. L. 2038 (W. D. Pa. 1972) .. 17

United States v. Resnick, 10 Cr. L. 2407 (5th Cir. 1972) .... +16

United States v. Wolfson, 299 F. Supp. 1246 (D. Del. 1969) . 23.

United States v. Young, 11 Cr. L. 2058 (8th Cir, 1972) ..... 17

Williams v. People, 7 Cr. L. 2296 (S. C. Mich. 1970) ...... 17,18

Williams v. United States, 412 F. 2d 729 (5th Cir. 1969) ....16, 22

_ Williamson v. State, 248 So. 2d 634 (Miss. S.C. 1971) ..... 16, 22

_ Wing vy. State, 10 Gr. L. 2210 (Okla. 1971) ................ 22

Witherspoon v. State, 8 Cr. L. 2262 (Mo. 1970) ...:........ 22

OTHER AUTHORITIES.

Pennsylvania Constitution :

lt: BR eo as oa Ad eG aaa 25

- Pa. Stat. Ann. tit. 19, $1057 .......00.000 00. eee. eee

Pa. Stat. Ann. tit. 61, § 566 et seq. (Muncy Act) .....5, 11, 23,24

ee ds aa ae ee ene Rae yen 2

United States Constitution:

Pees. PUN oak oa ba Ka eee eae ohne 3

Pn PRN 56k kK 5 ode ei ee le ek RRS 3

Fourteenth Amendment ............ MOE RECS SRR eS ks

White and Greenspan, Standing to Object to Search and

Seizure, 118 U. of Pa. L. Rev. 333 (January 1970) ..... 21

on

IN THE

Supreme Court of the United States

Ocroser TERM, 1971.

Misc. No.

SHARON BLUM,

Petitioner,

v.

COMMONWEALTH OF PENNSYLVANIA.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA. :

.SHARON Bum,’ your Petitioner\ respectfully prays

‘that a’ Writ of Certiorari issue to review the judgment of

the Supreme Court of Pennsylvania entered in the above

entitled case on March 8, 1972.

OPINION BELOW: |

The Supreme Court of Pennsylvania deniéd a peti-

tion for allowance of appeal on March 8, 1972, without

a written opinion. A copy of its order appears in Ap-

pendix A hereto. The Superior Court of Pennsylvania

had affirmed the judgment of the trial court in a.Per Curiam

1. Petitioner has married since the date of her indictment and

trial, and is now Sharon Blum Leon; however, she will-be referred .

' to throughout this Petition by the name under which shewas tried

and convicted.

ao

~ Yes

2 Petition for Writ of Certiorari

opinion filed October 28, 1971, with two of the seven Jus-

tices dissenting. That opinion has been reported at 220 Pa.

Super. 703, 282 A. 2d 737, a copy of which appears in Ap-

pendix B hereto. The Trial Judge filed an opinion and

order dated November 22, 1968, which opinion is reported

in 18 Bucks Cty. L. R. 547, and a copy of which appears

in Appendix C hereto.

JURISDICTION.

The order of the Supreme Court of Pennsylvania

denying the Petition for Allowance of Appeal (Appendix

A, infra, p. Al), was entered on March 8, 1972. The

jurisdiction of this Court ts invoked under 28 U. S.C.

§ 1257(3).

QUESTIONS PRESENTED.

1. Where local police officers, acting without a search

warrant or arrest warrant, stop an_auto driven by Peti-

tioner, based on a description of ,@, involved Tn recent

robbery, arrest Petitioner and passenger, take the keys

to the car, lock the car, have it towed to police station and

later seach the car without obtaining a seareh warrant,

and where there is no local statute making the car forfeit

to the state, does such search violate Preston as inter-

preted by Chambers and Coolidge.

,

2, Where property obtained during a search of the

car is offered in evidence at trial against Petitioner as

corroboration of the circumstantial evidence against her,

does Petitioner have standing to object to that evidence

where she was driving the car at the time it was stopped,

even though she was not the owner, but was accompanied

>

Petition for Writ of Certiorari 3

by the son of the owner and they were driving the ear

with permission, and even though the car was not searched

immediately following the arrest, but was searched after

. it was towed to the police station?

3. Does the*Pennsylvania Muncy Act unconstitution-

ally discriminate against women on the basis of sex, since

it provides that in sentencing women convicted of erime ~

the Court must impose only a maximum term of imprison-

ment, while in sentencing men the Court must impose a

minimum ‘as well as a maximum sentence?

CONSTITUTIONAL PROVISIONS INVOLVED.

The Fourteenth Amendment to the Constitution of the

United States provides in pertinent part:

‘‘Section 1. . . . nor shall any State deprive any person

of life, liberty or property, without due process of,

law; nor deny to any person within its jurisdiction

the equal protection of the laws.’

The Foprth Amendment to the Constitution of the

United States provides in pertinent part:

“The right of the people to be secure in their person,

houses, papers, and. effects, against unreasonable

searches and seizures shall not be violated. . . .”’

The Fifth Amendment to the Constitution of the

United States provides in pertinent part:

‘*No person shall . . . be deprived of life, liberty, or

property, without due process of law; .. . .”

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4 | Petition for Writ of Certiorari

STATEMENT OF THE CASE.

Legal Proceedings.

On September 16, 1965, Petitioner, Sharon Blum, was

charged in two bills of indictment, each containing six

counts, arising out of two separate robberies. Bill num-

ber 4142 charged her with armed robbery, robbery,

burglary, lareeny and receiving stolen goods from the

operator of a Seven-Eleven grocery store on March 8,

1965, and with conspiring with Morey Fisher to commit

said offenses. Bill No. 414-3 charged her with similar of-

fenses arising out of a robbery of a cleaning establishment

on March 13, 1965. The named co-conspirator and accom-

plice, Morey Fisher, was charged with the same offenses

in separate bills.

Prior to trial, a Petition to Suppress was filed and

a hearing was held before Honorable Paul R. Beckert,

Judge of the Bucks County Court. This testimony is

summarized below (page 6 et seq., infra). The petition

to suppress the evidence was denied by the Court, which

entered an oral Order at the close of the testimony.

Thereafter, Petitioner Blum was tried before Judge

Beckert and a jury. At her trial, Morey Fisher, who had

pleaded guilty to both of these robberies,, testified against

her. Except for his testimony, all of the evidence against

Petitioner Blum was circumstantial. This testimony is

also summarized below (page 7 et seq., infra).

Nonetheless, the jury convicted her on all counts of

both bills. After the verdict was recorded, counsel re-

quested a delay of two days ih sentencing to enable him

to diseuss with his client the filing of a Motion for New

Trial. The Court released her pending appearance in two

days on the posting of $5000.00, the same amount of bail

as had been posted since her arrest. However, the Court

Petition for Writ of Certiorari 5)

ordered that if motions were to be filed, the bail would *

be increased to $10, 000.00.

On October 28, 1966, Petitioner and bse! attorney told

the Court that they did not desire to file motions in the

nature of Motion for New Trial or Motion in ‘Arrest of

Judgment, but were willing to have sentence imposed.

The Court, after hearing from Petitioner and her counsel,

sentenced Miss Blum to pay the costs of prosecution and

committed her to the State Industrial Home for Women at

Muncy, Pennsylvania, for an indefinite period. On Mon-

day, October 31, 1966, Petitioner through her new counsel

filed a Motion for New Trial. Thereafter the District

Attorney filed a Petition to Dismiss the Motion for New

Trial, which was answered by defense counsel. On Peti-

tion of defense counsel, a hearing was held by the Trial

Court to determine whether she had intelligent and know-

ing understanding of the consequences of failing to file

a Motion. The Court found that there had been no denial

of Defendant’s constitutional rights.

Petitioner appealed to the Superior C ourt of Pennsyl-

vania, which, after argument, reversed and remanded the

ease to the Bucks County Court with directions to con-

sider and dispose of her Motion for a New Trial. Com-

monwealth v. Blum, 210 Pa. Super. 529, 233 A. 2d 613

(1967).

Petitioner then filed additional and supplemental

reasons for new trial and the case was argued before the

Bucks County Court en banc. On November 22, 1968, Judge

Beckert filed an Opinion and Order on behalf of the Court

denying motion for new trial. (Appendix C, infra, p. A3).

On December 6, 1968, Petitioner Blum appeared before

Judge Beckert who again resentenced her under the Muncy

Act, Pa. Stat. Any. tit. 61, (566 ef seq. (Purdon’s Pocket

Part Which had been amended following the decision of the

Pennsylvania Supreme Court in Commonwealth v. Daniels, |

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6 Petition for Writ of Certiorari

450 Pa. 642, 243 A. 2d 400 (1968). The new sentence imposed

a term of imprisonment of a maximum of two-and-a-half

years concurrently on each bill, and ordered that she be

given credit for the time which she had served following her

last sentence until she was admitted to bail, which amounted

to almost one year in jail. Petitioner was permitted to

renew her bail conditioned upon perfecting an appeal within

twenty days. She did thereafter timely file an appeal in

the Superior Court, and after hearing argument on March

23, 1970, on October 28, 1971, the Superior Court filed an

order affirming the judgment and sentence of the Trial

Court. Two of the seven Justices sitting on the case dis-

sented and would have granted a new trial.

Petitioner thereafter timely filed a Petition for Allow-

ance of Appeal in the Supreme Court of Pennsylvania.

That Petition was denied on March 8, 1972, without an

opinion. ;

Summary of Evidence on Pre-Trial Motion to Suppress.

At the hearing before Judge Beckert on December

10, 1965, in connection with the Motion to Suppress Evi-

dence,, the following testimony was elicited.

The testimony of the arresting officer, Detective

Wagner, established that on March 13, 1965, he received

a radio message about a robbery, as a result of which he

proceeded to the intersection of Routes 413 and 1. There

he observed a late model convertible Cadillac, with a white

bottom and a black top, driven by a female and containing

a male occupant, similar to the description he had received.

He followed this car, noting that the license number was

similar to that of a similarly described automobile which

had been seen pulling away from the scene of a robbery

at the Seven-Eleven grocery store on March 8, 1965, which

he had been investigating. The officer followed the car on

*

Petition for Writ of Certiorari 7

Route 413 to approximately 100 feet north of its inter-

section with Newportville Road, where it was stopped by

Private Snyder driving a second police car, at approxi-

mately 6:59 P. M. At no time while he-was following this

car did it exceed the speed limit. Both Detective Wagner

and Private Snyder then approached the car with drawn

guns. Both occupants were taken out of the car, lined up

against it with their hands on the car. Thereafter Detective

Wagner requested the keys to the car, and Miss Blum, after

saying that she was going to faint and dropping them,

retrieved them and gave them to Detective Wagner.

Detective Wagner then locked the car and later it was towed

to the Middletown Police Headquarters where it was there-

after searched. In the meantime, Private Snyder and

Officer Underdown of the Bristol Township Police Depart-

ment took Blum and Fisher to the Middletown Police Head-

quarters, where they were formally placed under arrest at

7:23 P. M. As the Trial Court noted, they were actually

under arrest from the time they were first taken into cus-

tody. The search of the car, which was registered in the

name of Fisher’s mother, disclosed a .22 caliber Strum

Ruger target pistol, sun glasses and gloves. Both suspects

were also interrogated while at the station. The officer did

not testify that they were warned of their constitutional

rights. It was admitted that no search warrant was ob-

tained, although one could have been. . ,

Summary of Evidence at Trial.

The evidence at the trial itself before Judge Beckert,

commencing October 25, 1965, can be- summarized as

follows. ,

The assistant manager of the Seven-Eleven store

testified that on March 8, 1965, he was held up by a man

who he identified as Morey Fisher. A woman who was

Bc: Petition for Writ of Certiorari

making a phone call from: a booth outside the store at

approximately the time of the robbery testified that she

saw a girl, whom she identified as Sharon Blum, sitting

in a white Cadillac outside the store while she was making

. the call, She did not see the car pull away.

The owner of the cleaning establishment testified that

on March 13, 1965, she was robbed by a male whom she

also identified as Morey Fisher. She also testified. that she

saw a Cadillac pull away from the curb after the robbery.

A witness who was driving to a.tavern next door to that

cleaning establishment said that as he was pulling into a

’ driveway leading to both stores he saw a Cadillae driven

by a girl pull out of that driveway without any lights. In

addition, Detective Wagner and Officer Ashton of the

Bensalem Police Department testified to arresting Miss

Blum and Fisher on March 13, searching the car and find-

ing a gun, sun glasses and gloves and cash therein, as well

as some cash on Fisher.

The only direct evidence against Miss Blum was the

testimony of Fisher himself. He admitted holding up both

stores. However, he testified this was done with the know]l-

edge of Miss Blum. This was contradicted by Sharon

Lee Blum, who testified that she and Fisher had been go-

ing together for some time and talking about getting

married. On March 8, 1965, they went to Reedman’s to

pick up a part for his car. She drove because he had no

license. The part was not in. As they were driving home

she ran out of cigarettes and they stopped at the Seven-

Eleven store and Fisher went in to get some, and came out

a few minutes later. She denied that he discussed holding

up the store before or after, and she denied that he ever

showed her a gun. She testified that on March 13, 1965,

they were on their way back to Reedman’s to get the part

when she made a wrong turn. Fisher, who had been nap-

Petition for Writ of Certiorari 9

ping in the car, woke up and told her to pull into the nearest

_ shopping center so he could ask directions. He went into

the cleaning establishment and came out shortly thereafter.

Again, she testified, he did not tell her anything about hold-

ing up the store and did not show her a gun. Miss Blum

also offered the testimony of numerous character witnesses

who testified to her good reputation in the community.

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10 Petition for Writ of Certiorari

REASONS FOR GRANTING THE WRIT. .

The decision in. this gase has left a confusing and.

misleading preeedent in Pennsylvania on two substantial

“questions under the federal Constitution, in the search and

seizure field, where the state courts have decided contrary

to the applicable decisions of this Court:

(1) whether police can lawfully stop a car on a high-

way without a search or arrest warrant, can arrest the

occupants for suspected participation in a recent -robbery,

can then take the keys from the driver, lock the car, tow it

to the police station without any exigency and without any

statutory authority for seizing or forfeiting the car, and

thereafter search the car, still without having obtained a

search warrant; and ,

(2) whether the driver of the car, who is not the

owner but who is accompanied by the son of the owner and

has permission to drive the car, has standing to challenge

the constitutionality of the search and seizure of evidence

found in the ear which is later used at her trial.

There has been great confusion and variation in inter-

pretation by state courts of the decision of this Court in

Preston v. United States, 376 U. S. 364 (1964). The sub-

sequent decisions of this Court, in applying the Preston

ease, Cooper v. California, 386 U.S. 538 (1967), Chambers

v. Maroney, 399 U. S. 42 (1970) and Coolidge v. New

Hampshire, 403 U.S. 443 (1971). have been misinterpreted

and misapplied by the states in a conflicting manner. Fur-

thermore, the state courts have also been inconsistent in

their determination of the standing of an individual to test

an illegal search and seizure, particularly in ear’ search

_ Situations; those courts have misinterpreted the decision

of this Court in Jones v. United States, 362 U. S. 257

(1960). The confusion of the doctrines and apparent mis-

Petition for Writ of Certiorari 11 .

application of these cases: is mest clearly demonstrated in

the case at bar. Here, the prosecutor admitted that the

search was unlawful under the Preston case; however,

the trial court refused to accept that admission, and justi-

fied that refusal by an unusual interpretation of the time

of arrest, and alternatively, by concluding that Petitioner

lacked standing to contest the seizure of items from a car

driven by her. even though the evidence was offered against

her at trial, simply by concluding that. she was not the

owner of the car and was not actually in it when it was —

searched. The affirmance of the trial court’s decision by

the Superior Court with a four-word order, without opin-

ion, and with two justices dissenting, did not provide any

guidance to other Pennsylvania courts on these issues;

nor did the Supreme Court’s refusal to review the case help *

to provide clarity or to correct an error of constitutional

_ dimension.

In addition, the case poses the question of utmost im-

portance to all women in Pennsylvania convicted of crimes:

does the Muncy Act violate the constitutional rights of

women, since it provides that courts in pronouncing sen-

tence on women shal] not fix a minimum but only a maxi-

mum term of imprisonment, even though in pronouncing

sentence on men, the courts must impose both a minimum

and a maximum term of imprisonment.

1. This Court Should Decide Whether the Warrantless

Search in This Case Violated Preston v. United States,

as Interpreted by Chambers v. Maroney and Coolidge

v. New Hampshire.

Prior to the trial of this case, Petitioner filed a Peti-

tion to Suppress certain evidence, alleging that it had been

_ obtained by an unlawful search and seizure without a war-

rant. After a hearing on the Petition, Judge Beckert de-

,

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12 Petition for Writ of Certiorari

nied the Petition, entering an oral Order, concludimg that:

there was probable cause to search the ear in question, as

the search was incidental to a lawful arrest made upon

probable cause; and Petitioner did not possess a constitu-

tional right to raise the question, as there was no showing

that the car was in her eontrol, since the car-was owned by

someone not present and the son of the owner of. the car was

a passengér at the time of the stopping; and that she was

not actually in the ear the time of the search.

During oral argument in this Court in the first appeal -

and in his brief filed in that appeal, the District Attorney

of Bucks County coneeded that Judge Beckert had erred

in concluding that there was probable cause for the arrest

and that the search was incident to the arrest. He admitted

that the decision of the Supreme gn of the United States

in Preston-v. United States, 376 U. S. 364 (1964) clearly

governed this case. In his brief aes the Bueks County

Court en banc he did not even address this issue. However,

Judge Beckert er to accept the Commonwealth’s

‘‘confession of error’’ and based his opinion on’ two

grounds: the search was incident to a lawful arrest; and

Appellant had no ftanding to raise this issue. It is re-

spectfully submitted that the Judge had misinterpreted this

Court’s decisions on both issues, and that the refusal of the

Appellate Courts of Pennsylvania to pass on this issue

leaves unsettled the law on a major constitutional ———

affecting criminal justice. .

When the Trial Judge rendered his decision, it ap-

peared to fly in the face of the decision of this Court in

Preston. In Preston this Court laid down the clear guide-

lines that the search must be contemporaneous with the

arrest in time and place. Also see Stoner v. California,

376 U. S. 483 (1964), decided on the same day as Preston.

It is extremely doubtful whether in the case at bar

there was probable cause for stopping the car driven by

Petition for Writ of Certiorart 13

Petitioner Blum and containing Defendant Fisher nor for

placing thea under arrest on the scene or thereafter. The

only information available to the officer who stopped the

car was that it approximated the description he had re-

ceived on his radio as having left the scene -of a robbery.’

The officer did not observe any violation of law committed |

by the occupant of the car, and had nothing more than a

mere suspicion. This clearly does not constitute probable

cause for a warrantless arrest. Ker v. California, 374 U.S.

23° (1963) ; Beck v. Ohio, 379 U. S. 89 (1964). In fact, the

' Trial Court found that the: officer had no more than rea-

sonable suspicion to stop the car. |

Nonetheless, this Court need not even address the ques-

tion of whether the initial stopping was valid. Even if it

were to assume that the stopping was valid, the subsequent

search was not lawful, since it was not.contemporancous in

time or place with the arrest.

Judge Beckert in the opinion for the Court en bene

‘ concludes that the search was not made until after the

formal arrest of defendants at police headquarters, which

was at 7:23 P. M. He admits that no search prior to the

arrest could have been justified without a warrant. How-

ever, Judge Beckert overlooked the fact that he had made

a factual determination that the defendants were actually

under arrest when the car was stopped on the highway at’

6:59 P. M. when the officers approached the car wth drawn

guns and forced both occupants to line up against the car

with their hands on the roof. Such a factual finding was

compelled by the decision of this Court in Miranda v. Art-

zona, 384 U.S. 436 (1966) which laid to rest technical argu-

ments dealing with the formal pronouncement of arrest.

2. The fact that the car was believed to have been the one in-

volved in the holdup on March 8, 1965, five days earlier, certamly:

could not constitute probable cause for stopping it and arresting its

occupants on March 13, 1965.

‘

4

e:

$

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i

SS PEE Ge Sy Os fy rege - " . .

a a aa A aa as ne nr gee

2

oa | S SER Hee

14 Petition for Writ of Certiorari

The Court there equated arrest with police custody or any

other deprivation of freedom of action in any significant

way. 384 U.S., at 477-478.

Accordingly, where the officer stopped the car, ap-

proached it with drawn guns, made the driver and pas-

senger line up against it with their hands on the roof, took

the keys from the driver, locked the car, took the driver and

passenger to police headquarters, had the car towed to

headquarters where it was searched almost one hour later,

it requires a feat of mental gymnastics to argue that the

search was incideutal to and contemporaneous with the

arrest of those individuals.

If there were any question left as to the intention of

this Court as enunciated in the Preston case. these would

seem to have been laid to rest by. the subsequent decisions

in James v. Louisiana, 382 U. S. 36 (1965) (a search of

defendants home two blocks from the scene of his arrest) ;

Dyke v. Taylor Implement Mfg. Co., 391 U. S. 216 (1968)

(where defendants were arrested for reckless driving, were

taken to jail, their car parked outside where it was searched

by police) ; Chimel v. California, 395 U.S. 752 ( 1969) (search

of a three bedroom house following defendant's arrest in

the house pursuant to an arrest warrant was held to be too

broad and not incident to a valid arrest).

The appellate courts 6f Pennsylvania thereaf ter seemed

to follow the lead of the Supreme Court of the United

States. See Commonwealth v. Ellsworth, 421 Pa. 169, 218 -

A. 2d 249 (1966) (where the search of defendants’ hotel

room approximately two hours after the arrest of defend-

ants was held not be contemporaneous in time of place) ;

Commonwealth v. Harris, 429 Pa. 215, 239 A. 2d 290 (1968),

reversing 209 Pa. Super. 27, 23 A. 2d 881 (1966) (where

defendant was arrested as he entered his house after park-

ing his automobile directly in front of the house, and the

immediate search of the automobile was held not to be con-

Petition for Writ of Certiorari 15

temporaneous); Commonwealth r. Cockfield, 431 Pa. 639,

246 A. 2d 381 (1968) (where a search of defendant’s un-

' occupied car prior to his arrest, and the subsequent search

of his automobile at the police station following his arrest

and arraignment were both held to be not contemporaneous

or incidental to a lawful arrest).

However, after Judge Beckert filed his Opinion and

after the case had been argued in the Superior Court of

Pennsylvania, but before it had been decided by that Court,

this Court rendered its decision in Chambers v..Maroney,

399 U.S. 42 (1970). That case, relying in part on Cooper

v. California, 386 U. S. 538 (1967), seemed to limit the

effect of Preston. In Chambers, the Court spoke about

exigent circumstances justifying the removal of a car from

the highway and the subsequent search at a police station.

In footnote 10 of the Opinion, this Court noted that a

search at the point of arrest was impractical and not safe

for the officers, and it would be convenient to the owner to

have it searched at the station house. 399 U. S., at 52.

Then, just one year later, this Court, in Coolidge v. New

Hampshire, 403 U.S. 443 (1971 ), repeated and reinforced

the Preston decision, citing Chambers with a notation that

it was to be *‘compared” with Preston. It also distin-

£uished Cooper rv. California and noted that even in Cooper,

the Court reaffirmed Preston?

Apparently because of confusion over the meaning of

these cases, both the State and Federal Courts have divided

3. It should be noted that ¢ eoper, which dealt, with the validity

of a warraniless search of a car held for torfetture under state law.

did not cite or refer to ¢ Ine, 1958 Plymouth Sedan v. Pennsylvania.

$80 U.S. 093 (1965). In"that case this Court noted that the car

itself, which was not per se contraband, but was only derivatively

contraband, could not be declared forfeit by the state unless and until

there had been some use of the illegality seized evidence, which would

violate the Fourth Amendment. In ( eoper, apparently the Court as-

sumed that the car was contraband without any mention of this issue.

s

*\AEpee sy wee

0

16 Petition for Writ of Certiorari

on their interpretation of Preston, Cooper, Chambers and

Coolidge. ~

One group of State cases apparently adheres strictly

to Preston and considers Chambers applicable only where

there is immediate danger to the safety of police or evi-

dence. See, forexample: State vr. Wilson, 106 Ariz. 411 |

(1970), and eases cited therein; cf. State v. Tosatta, 107

Ariz. 231 (1971) ; Petty v. State, 411 S. W. 2d 6 (Ark. 1967) :

Mozzetti ». Superior Court, 4 Cal. 3d 699 (1971) ; Parton v.

State, 363 N. E. 2d 636 (Ind. S. C: 1970); Williamson vr.

State, 248 So. 2d 634 (Miss. S. C. 1971) (search of truck at

Courthouse morning following arrest) ; People v. Wither-

spoon. 8 Cr. L. 2262 (S. C. Mo. 1970) (search of trunk of car

after driver already j in custody for reckless driving).

Severai Federal cases, arising in two different Circuits,

seem to copeur. Sce: United States v. Resnick, 10 Cr. L.

2467 (5th Cir. 1972): United States v. Colbert, 10 Cr. L.

2445 (Sth Cir. 1972); Williams v. United States, 412 F. 2d

729 (Sth Cir. 1969); United States v. Day, 10 Cr. L. 2445

(6th Cir. 1972).

A second group of State cases seem to suggest that once

the police have justification for seizirfe a car, they do not

thereafter need a warrant-to make a thorough search or

inventory, provided there is some practical reason for post-

poning the search. These cases draw heavily on ¢ ‘voper

and Chambers. See, for example: People r. Woods, 485

P. 2d 491 (Colo. 1971); People r. Sullivan, 29 X. Y. 2d 69

(1971) (where the car was towed away for illegal parking) ;

but cf. People v. Lewis, 7 Cr. L, 2297 (N. Y. Ct. App. 1970)

(offeer recognized and arrested driver and at station house

after finding three-year old arrest warrant outstanding for

driver, then searched car; search held invalid): Heffley v.

State, 423 P. 2d 666 (Nev. 1967) ; State v. Criscola, 21 Utah

2d 272 (1968) ; State v. Dombrowski, 44 Wise. 2d 486 (1969) ;

¢f. State v. Dell, 258 La. 1024 (1971); also cf. Rudolph v.

Petition for Writ of Certiorari * 17

Commonwealth, 10 Cr. L, 2252 (Ky. Ct. pp. 1971) (defend-

wit arrested for drunkenness outside of auto, at which time

officer observed a tape player in back of car; later at station

house officer learned of recent robbery involving tape

player, went back and seized player from car; seizure held

reasonable).

However, several other Circuits take a different view

and seem to agree with the second group of state cases.

One Circuit, relying on Chanibers shortly before Coolidge

was decided, arrived at a similar conclusion. United States

v. Golenibiewski, 437 F. 2d 1212 (Sth Cir. 1971). However,

after Coolidge, that Cireuit held that a search at the police

garage Was unreasonable under Coolidge, but concluded

that it was harmless error. ’ Kaufman v. United States, 10

Cr. L. 2343 (8th Cir. 1971). Also see United States v.

Young, 11 Cr. L. 2058 (Sth Cir. 1972), where the Court re-

lied on Cooper to uphold a search of an in-custody counter-

feiting suspect’s car 8 hours after his arrest and seizure

of the car. And see United States v. Collins, 439 F. 2d 610

(D. C. Cir. 1971) (where arrest in ear without probable

cause did not justify a search of the car).

. United States v. Dento, 382 F. 2d 381 (3d Cir. 1967),

relied on by Judge Beckert in the instant case, which was

decided prior to Chambers and Coolidge, has been held not

to be viable in light of Chambers and subsequent cases. See

United States v. Day, 331 F. Supp. 254, 256 (E. D. Pa.

1971); also see United States v. Mencke, 11 Cr. L. 2038

(W. D. Pa. 1972), where a warrantless search of a drug

defendant’s auto shortly after his arrest at his parents’

country home was held unreasonable because of failure of

the arresting officers to obtain a warrant.

Some other state cases sustain searches subsequent to

arrest on strained interpretations of what is contempo-

raneous and when such search is justified by exigencies.

See, for example: Williams rv. People, 7 Cr. L. 2296 (S. C.

oh eeseenanep 2 Le TT ST LTTE ES,

:

-

18 | | Petition for Writ of Certiorari

Mich. 1970) (search of car 250 feet from place of arrest

held to be substantially contemporaneous with arrest and

reasonable). One federal Court seems to agree. See

United States vr. Julian, 10 Cr. L. 2138 (10th Cir. 1971)

(where warrantless seizure and search of Dyer Act sus-

pect’s ear outside his motel room following his arrest was

justified on grounds of Chambers, without mention of

Coolidge).

Although as noted above the Pennsylvania Courts

seemed to follow Preston, even they have not been con-

sistent. Compare Commonwealth v. Ellsworth, Common-

wealth v. Harris, and Commonwealth v. Cockfield, all supra,

with Commonwealth v. Gordon, 431 Pa. 512, 246 A. 2d 325

(1968), where the Court used the doctrine of necessity to

sustain a search of an in-custody wounded suspect at a

hospital even though the Court recognized that the search

was not incidental to or contemporaneous with his arrest

and a warrant could have been obtained.

Thus, to clarify the confusion between and within the

various courts concerning this substantial federal question,

this Court should review this case.

2. This Court Should Decide Whether Driver of a Car Who

Is Not the Owner Has Standing to Contest a Search of

the Car at the Police Station Subsequent to Her Arrest.

It is conceded that the ear in question was titled in the

name of Morey Fisher’s mother, and it is also admitted that

Morey Fisher was a passenger in the car when it was

stopped. By the same token, it is clear that Petitioner

Blum was driving the car at the time it was stopped and

that she was doing so with the permission of Morey Fisher

and apparently with the permission of his mother. There

is no dispute that the evidence found therein was introduced

against Petitioner Blum at the time of her trial. It is thus

Petition for Writ of Certiorari 19

.

incredible to suggest that Petitioner Blum had no standing

to raise the constitutional question. Certainly the Common-

wealth should not be permitted to place Petitioner on the -

twin horns of a dilemma—on the one hand saying that she

does not have sufficient possession and control over the car

to raise the constitutional objections, while on the other

saying that anything found therein can be used against her

in evidence because the car was within her possession and

control. In Jones v. United States, 362 U. S. 257, 263-264

(1960), this Court solved a similar dilemma, holding that

presence in an apartment with permission of the owner was

sufficient to give standing to raise constitutional questions

as to validity of the search of the apartment. Likewise,

here there is no allegation or proof that Morey Fisher did

not have his mother’s permission to use the car nor tlt

Petitioner was driving without his permission. Accord-.

ingly, it is just as clear as in Jones that Petitioner has

standing to object to the use of the evidence against her.

It should be noted that in the Preston case, supra, this

Court was not even slightly bothered by the fact that the

car in which the three men (including petitioner) were ar-

rested was owned by one of the other men; no one ques-

tioned the standing of petitioner. In none of the numerous

car search cases has counsel been able to find any suggestion

that a driver or passenger has no standing to object—in.

fact, in none has the question of title ever been raised. See,

e.g., Commonwealth v. One 1958 Plymouth Sedan, 380 U.S.

693 (1965), and 418 Pa. 457, 211 A. 2d 536 (1965): Beck rv.

Ohio, 379 U.S. 89 (1961); Rios vr. United States, 364 U: S.

253 (1960); Henry v. United States, 361 U. S. 98 (1959);

Brinegar v. United States, 338 U. S. 160 (1949); United

States v. DiRe, 332 U. S. 581 (1947): Carroll v. United

States, 267 U.S. 182 (1925).

If there were any question about the standing of Peti- -

tioner to object to use of this testimony, it seemed to be

1 megan gs ner >> tee

20 Petition for Writ of Certiorari

laid to rest by this Court in Simmons ¢. United States, 390

U.S. 377 (1968). In that case, the F. B. 1. introduced into

evidence against Garrett a suitease and clothing found in

the basement of a home belonging to Mrs. Mahon, mother

of Andrews, who was Garrett’s co-defendant. The Court

reviewed: the holding of the Jones case and coneluded that

it is sufficient standing if defendant is legitimately on the

premises when the search occurs. 3890 U.S. 26, 390. Here,

Petitioner Blum was legitimately on the premises—i.ec., in

the car—when the car was stopped and when the arrest in

fact took place. She thus has sufficient standing to object.

See Contreras v. United States, 291 F.2d .56 (9th Cir. 1961):

Barnett v. United States, 384 F. 2d 848 (Sth Cir. 1967) ; also

see Plazola v. Uniied States, 291 F.2d 56 (9th Cir. 1961) ;

cf. Diaz-Rosendo v. United States, 357 PF. 2d 124 (9th Cir.

1966).

Judge Beckert attempts to suggest that Petitioner was

not lawfully on the premises (7.¢., the car) because she was

in the police station at the time the car was actually

searched. This again ignores the Judge's factual finding:

that Petitioner Blum and Morey Fisher had already in fact

been arrested and placed in custody and were foreed by the

police to go to the police station. If Judge Beckert’s logic

were followed, then the police who desire to search a prem-

ise could arrest the occupant, forcibly remove him to the

police station and thereafter search the premises at their

leisure and then argue that the occupant was not on the

premises at the time the premises were searched. Judge

Beckert also attempts to justify his conclusion by stating

that the record fails to support the position that Petitioner

Blum was the owner or possessor of the items seized or

legitimately in the automobile when the scarch was con-

ducted. The burden is on the Commonwealth, not on the

Petitioner, to justify the warrantless search and seizure.

Petition for Writ of Certiorari 21

In any event, to s suggest that the record does not support

Petitioner Blum’s right to operate and be in the motor

vehicle is to ignore the plain facts.

The type of approach suggested by Judge Beckert is

soundly criticized in a recent exhaustive study published in

the University of Pennsylvania Law Review: see White

and Greenspan, Standing to Object to Search and Seizure,

118 U. or Pa. L. Rey. 333 (January 1970).

There are many recent appellate decisions in Penn-

sylvania which give implicit recognition to a broad inter-

pretation of Jones. In Commonwealth rv. Harris, supra, the

Supreme Court of Pennsylvania suppressed evidence found

in the car parked directly outside the house in which de-

fendant was arrested, even though the defendant explained

that the auto did not belong to him. In Comionwealth

Dusscll, 214 Pa. Super. 1, 248 A. 2d 857 (1969), this Court

in holding the search of an automobile valid never ques-

tioned the defendant’s right to raise the issue even though

the car was apparently stolen. In Commonwealth v. Pinno,

4383 Pa. 1, 248 A. 2d 26 (1968) the Court ruled inadmissible

‘evidence head in an unoccupied convertible which defend-

ant had previously been observed driving without ever

questioning defendant's standing to raise the question and

without any proof of ownership of the automobile.

Also see Mancusi v. DeForte, 392 U. S. 364 (1968)

where one officer of a union was held to have standing to

object to a search of a joint office he shared with another

individual.

However, many of the decisions of State and Federal

courts subsequent to Jones differ in their application of the

standing doctrine.

. The Federal Circuits are split on the question of

whether a Dyer Act defendant has standing to object to

search of the stolen ear. Compare Glisson v. United States,

22 Petition for Writ of Certiorart

406 I. 2d 425 (Sth Cir. 1969) ; Cotton v. United States, 371

F. 2d 585 (9th Cir. 1967) ; Stimpson v. United States, 346 F.

2d 291 (10th Cir. 1968) ; and cases cited in each, with Palmer

vr. State, 10 Cr. L. 2455 (Md. Ct. Sp. App. 1972) and cases

discussed therein. Also see United States v. Golembiewski,

437 F. 2d 1212 (8th Cir. 1971) where the court avoided the.

issue of whether a passenger in a stolen car has standing

to object to a search of the car. In United States v. Cobb,

432 F. 2d 716 (4th Cir. 1970), the Court concluded that the

driver of a ear registered in fhe name of another had stand-

ing to object to a search of the trunk of the car even though

he had run from the car upon seeing the officers. And in

Williams v. United States, 412 F. 2d 729 (5th Cir. 1969) a

defendant who had denied ownership of a car was permitted

to object to use of evidence found in that car after a war-

rantless search. |

State courts have varied in their approach. The fol-

lowing cases have sustained standing of persons who were

not actual owners of the property concerned: Lanford v.

People, 489 P. 2d 210 (Colo. 1971) (visitors in apartment) ;

Paxton v. State, 263 N. KE. 2d 636 (Ind. 1970) (passenger in

ear); Hebron rv. State, 281 A. 2d 547 (Md. Ct. Sp. App. 1971)

(transient occupant of searched apartment); Williamson v.

State, 248 So. 2d 634 (Miss. 1971) (driver of rental truck) ;

State vr. Russo, 470 S. W. 2d 164 (Mo. 1971) and Wither-

spoon v. State, 8 Cr. L. 2262 (Mo. 1970) (passenger in car

had standing to object to warrantless search of trunk after

driver was arrested) ; Wing v. State, 10 Cr. L. 2210 (Okla.

1971). (search of girl friend’s car near scene of robbery;

however, held to be harmless error).

On the other hand, the following Courts have inter-

preted Jones very narrowly. Davidson v. State, 252 So.

2d 108 (Ala. 1971) (son who had been in mother’s car

several hours before it°was searched had no standing to

Petition for Writ of Certiorari 23

object); State v. Oliver, 273 A. 2d 867 (Conn. 1970) (de-

fendant las no standing to object to search of unoccupied

car not belonging to him); United States v. Wolfson, 299

F. Supp. 1246 (D. Del. 1969) (defendants cannot object to

search of garage rented by other defendants when they were

not present) ; People v. Joshua, 169 X. W. 2d 105 (Mich, Ct.

. App. 1971) (search of other occupants of car defendant had

been driving when arrested for traffic violation) ; State v.

Holloway, 187 N. W. 2d 85 (Neb. 1971) (interloper has no

standing); and compare Commonwealth v. Williams, 219

Pa. Super. 109, 280 A. 2d 430 (1971) (defendant cannot ob-

ject to evidence seized from another arrested outside de-

fendant’s apartment), with Commomeecalth v. Smith, 201

Pa. Super. 511, 193 A. 2d 778 (1963) (one defendant eannot

object to search of second defendant’s apartment even

though he was present since second defendant invited the

officers to enter and Search). |

This Court should thus review the decision jn this case

to decide the scope of the doctrine of standing.

’ 3. The Act Under Which the Appellant Was Sentenced

Unconstitutionally Discriminates Against Women and

the Sentence Imposed on Her Was Illegal.

Appellant’s original sentence, imposed on October 28,

1966, was under the Muncy Act, Pa. Srar. Ann. tit. 61,

- § 566, and consisted of an indefinite period of imprisonment

as required by that Act. While the first appeal was pend-

ing in this ease, the Supreme Court of Pennsylvania ren-

dered its decision in Commonwealth v. Daniels, 430 Pa. 642,

245 A. 2d.400 (1968), holding that the Muney Act unconsti-

tutionally discriminated against women. Almost immedi-

ately thereafter the Legislature amended the Muney Act

as follows:

‘‘Any court of record in this Commonwealth, exercis-

ing jurisdiction, may, in its discretion, sentence to the

24 Petition for Writ of Certiorari

State Industrial Home for Women any female over

sixteen years of age, upon conviction, upon pleading

guilty of, the commission of any criminal offense

punishable under the laws of this State. Any due no-

tice given to all county board of trustees of said State

Industrial Home for Women that the said home ‘is

prepared to receive all women so convicted or plead-

ing guilty is an offense punishable by imprisonment

for more than a year wlio shall be sentenced to im-

prisonment, such sentence in all cases shall be to con-

finement in said State Industrial Home for Women.

The court in imposing sentence shall not fix a mini-

mum sentence, but shall fix such maximum sentence as

the court shall deem appropriate, so long as such

maximum sentence does not exceed the maximum term

specified by law for the crime for which the prisoner

is being sentenced.”’ Act of July 16, 1968, Pa: Srar.

Ann, tit. 61, £566 (Pfrdon’s Pocket Part).

By the time Judge Beckert rendered his opinion and’

order on behalf of the Bucks County Court en bane, the

new Act was in effect. Accordingly, when he resentenced

Miss Blum he sentenced her under the provisions of the

amended Act to a term of imprisonment of 24 years.

The Act as amended now permits women to be treated

like men with respect to the maximum sentenee, which is

the real sentence, as noted by the Supreme Court in the

Daniels ease. However, the Act still continues to diserim-

inate against women with respect to the imposition of a

minimum sentence. As noted in footnote 6 of the Supreme

Court’s opinion in the Daniels case, a woman technically

becomes entitled to parole immediately upon commitment

to Muncy. -In practice, however, this is not true. ‘he

Superintendent. of the State Correctional Institute at

Muney, in a letter to the Defender Association of Phila-

Petition for Writ of Certiorari 25

delphia in connection with the Daniels case, stated that

prior to the amendment of the Muncy Act there was a

schedule of time for girls to be considered for release. Al-

though this was not designated as parole it was, in effect,

equivalent to parole. Tlius, Miss Blum, who was sentenced

for armed robbery, would not be considered for parole

under this schedule until the expiration of approximately

2% or 3 years. Since her maximum sentence under the

Act as amended was only 24% years, this would mean in

effect that she would ‘undoubtedly not be paroled until

expiration of her entire term.

Under the Act relating to sentencing of men, Pa, Srav.

ANN. tit. 19, ¢ 1057, a minimum sentence must be imposed,

which can be no more than one-half of the maximum and

men become eligible for ‘parole at the expiration of that

minimum. Thus a man sentenced to a two and a half year

term could have a minimum sentence of no more than 15

months, :

Here, Sharon Blum served almost 12 months. before

she was released on bail and if she is ultimately returned

to prison under this new sentence, even though she will be

given credit for the time served, undoubtedly she will not

be considered for parole until she has been there for some

period of time which would execed the minimum term al-

lowable for a man, This is a denial of equal protection and

due process.

This conclusion is strengthened by the recent Consti-

tutional Amendment adopted by Pennsylvania which pro-

vides: | :

“Prohibition Against Denial or Abridgment of Equal-

_ ity of Rights Because of Sex a7

: Equality of rights under the law shall not be denied’

or abridged in the Commonwealth of Pennsylvania

because of the sex of the individual.’? Art. 1, § 27,

‘

: Petition for Writ of Certiorari

CONCLUSION.

For all of the foregoing reasons, this Petition for Writ

Certiorari should be granted.

_ Respectfully submitted,

StTaxrorp SHUMUKLER,

1616 One East Penn Square,

Philadelphia, Pennsylvania. 19107,

Aus D. Witssame, Je.

W East Court Street,

Doylestown, Penn«ylvania. 18901,

Connsed for Petitionrs.

Appendix.

IN THE

SUL REME COURT OF PENNSYLVANIA

Easterx District

No. 366 Allocatur Docket

(No. 208 October Term 1960)

CO. MONWEALTH OF PENNSYLVANIA

SHARON LEE BLIM.

Petitioner.

ORDER ON THE PETITION FOR ALLOWANCE oF

APPEAL FROM THE JUDGMENT OF THE SUPE.

RIOR COURT.

Mareh & 192. Denied. Pex (rntas.

A2 Order (Superior Court of Penna. )

IN THE

SUPERIOR COURT OF PEN NSYLVANTA

Nos. 208, 209, October Term, 1969

_

COMMONWEALTH OF PENNSYLVANIA

SHARON LEE BLUM,

Appellant,

Appeals From the Judgment of Sentence of the Court of

« Quarter Sessions of Bucks County at Nos. 414-2 and

414-3 of 1965.

JUDGMENT.

Per (tetas - Filed: October 28, 1971

Judgment of sentence affirmed.

Horrmas and Cercoxe, JJ. dissent and would grant

trial.

a new

Opinion (Bucks Co. Crim. Courts) A3

IN THE

CRIMINAL COURTS OF BUCKS COUNTY

Nos. 414-2, 414-3. Term, 1965.

eS

COMMONWEALTH OF PENN SYLVANIA

v.

SHARON LEE BLUM

Ist (t.: Armed Robbery

2nd Ct.: Robbery

ord Ct: Burglary

4th Ct: Larceny

oth Ct: Receiving Stolen Goods

6th Ct: Conspiracy

——

OPINION AND ORDER OF THE COURT.

Sharon Lee Blum [defendant] was charged in two

idefttical multiple count indictments with the crimes of

armed robbery, robbery, burglary, larceny, receiving stolen

goods and conspiracy with one Morey Fisher [Fisher] to

commit these offenses, Bill of Indictment 414-2 dealt with

the commission of the above enumerated crimes at a certain

Seven-Eleven grocery store, located in Middletown Town-

ship, this county, on March 8, 1965, the other, Indictment

4143, at a cleaning establishment known as Crafton

Cleaners, Bensalem Township, Bucks County, the latter

robbery and related crimes taking place on March 13, 1965.

After trial, the jury rendered a verdict of guilty on all

counts of both indictments.

Ad Opinion (Bucks Co. Crim. Courts)

The matter is presently before this court pursuant to”

the dictates of the Superior Court to dispose of motions for

new trial filed after the sentence had been pronounced:

Commonwealth rv. Blum, 210 .Pa. Superior Ct. 529, 30

(1967). 2

The first ground advanced by the defendant in her

brief is that the trial judge erred im refusing to suppress

certain tangible evidenec, namely, a 2° caliber Strum Ruger

revolver, a pair of gloves and a pair of sunglasses, all be-

longing to Fisher. These items were seized by the police -

during a search of a Cadillac automobile owned by Sylvia

Fisher, Fisher’s mother. Defendant maintains that the

search of this vehicle and the ultimate seizure of the above

items was unreasonable, as the search was conducted with-

out a warrant and was not incident to a lawful arrest, since

not conducted at the place where the vehicle was stopped,

but at the police station.

At the suppression hearing, the following pertinent

factual situation was developed :

On Saturday evening, March 13, 1965, at 6:50 P. M.,

Detective John A. Wagner, Jr.. of the Middletown Town-

ship police department, heard a report at headquarters on

the Bucks County Police Radio monitor that there had been

a hold-up at the Crafton Cleaners in the neighboring town-

ship of Bensalem. According to the message received by

Wagner, the perpetrators of the hold-up, a male and female,

had fled the scene in a late model white Cadillae convertible

with a black top, travelling cast. on Street Road toward

U. S. Route 1 and the man was carrying a western-type

revolver. Wagner immediately went to an unmarked patrol

car and drove to the intersection of Route 413 and U. 8.

Route 1 in Middletown Township. At approximately 6:04

or 6:55 P. M., that is four or five minutes after the radio

report of the robbery, a vehicle meeting the description of

Opinion (Bucks Co. Crim. Courts) A5

the getaway car passed Wagner's car, travelling east on

U. S. Route 1 and tured onto the southbound ramp of

Route 413. Wagner proceeded to follow the Cadillae con-

vertible and observed that, the license number was Pennsyl-

-vania 449-46J. It should be noted at this juncture that

- the first three digits and last letter of the license number

were the same as on a similar Cadillac which Wagner had

observed the previous evening in the vicinity of the Seven-

Eleven store, which had been robbed on March 8, 1965 by

a male and female, who likewise made their escape in a late

model white Cadillac with a black top. Prior to March 15,

1965, Wagner, by extensive investigation, had determined

that there was only one white convertible Cadillac regis-

tered in the Commonwealth of Pennsylvania with a =ix item

license number containing the first three digits 449 with

the last item being the letter *‘J’’ and that was titled to a

- Sylvia Fisher. ,

Wagner radioed the license number of the Cadillac to

his headquarters with the request that a uniformed police

officer, in a marked vehicle, be dispatched to stop the Cadil-

lac. A short distance thereafter, Officer Snyder passed

Wagner's car and fell in behind the Cadillac. At this point

Wagner radioed Snyder to take precautions since, based

upon the report that Wagner had received, there was a

possibility that the occupants were armed. Snyder stopped

the Cadillae which was being operated by Blum, in which

Fisher was a passenger, on Route 415 at its intersection

with Newportville Road at 659 P.M. After the passage of

approximately five minutes the driver and passenger of

the Cadillac were taken from the place of stopping to the

Middletown Township police headquarters. The Cadillae

wax not searched when stopped, but locked by Detective

Wagner and ordered towed to the police headquarters.

Approximately fifteen minutes later the defendant and

Fisher were positively identified at police headquarters by

A6 Opinion (Bucks Co. Crim. Courts)

the victims of both the Seven-Eleven and Crafton Cleaners

robberies as the perpetrators thereof. The Cadillac, in tow,

arrived at police headquarters at approximately 7:45 P. M. |

Five minutes thereafter (7:50 P. M.) Detective Wagner, in

the company of Sergeant McKenna, with the purpose of

obtaining a western-type revolver described by the victims

and the money taken from the recent robberies, searched

the Cadillac and found a .22 caliber Strum Ruger revolver

under the rear seat. A search by Chief Riempp and Sergeant

Ashton, of the Bensalem Township police, uncovered a pair

of sunglasses and gloves.

_ It is without any doubt that the search of the Cadillae

vehicle was made without procuring a search warrant. We

are convinced now, as we were convineed at the time of the

suppression hearing, that the motion to suppress the afore-

said items of tangible evidence Was rightfully and correctly

dismissed, It is our conviction that this holding can be sus-

tained on either one of, or all of, the following premises.

In order to be successful in a motion to suppress evi-

dence allegedly unlawfully obtained, it is necessary that the

defendant possess a standing to raise such an objection,

and not merely claim prejudice through the use of evidence

gathered as a consequence of an unlawful search and seizure

that is performed against the property of another. Sub-

ject to two exceptions hereinafter noted, a defendant who

desires to raise a Fourth Amendment objection is required

to demonstrate that he was the owner or possessor of seized

property, or, that he had a possessory interest in the

searched property, as distinguished from one who claims

prejudice only through the use of evidence gathered as a

consequence of the search. The rationale behind the above

thinking is founded on the principle that restrictions pon

searches and seizures were designed for the protection

against official invasion of privacy and security of property:

Jones v. United States, 362 U. S. 257; 4 L. ed. 2d 697, 702.

erareqeqmmncmremnceanes aun SE ANCOR Sh ECA ERE ORM

Opinion (Bucks Co. Crim. Courts) A7

The two exceptions to the’ above are: (1) where the

seized evidence is itself an essential element of the offense

charged, an example being possession of narcotics, and (2)

lu poxsessory interest need be shown by the defendant in

the searched premises if it is shown that the defendant was

legitimately on the premises when the search occurs: Jones -

r. United States, supra; Simmons v. United States, — U.S.

» 19 L. ed. 2d 1247, 1257 (1968). We are of the opinion

and so hold that the facts of the instant case do not bring

the defendant within the area of cither exception,

Defense counsel attempts to bring his client within the

exception of being legitimately on the premises, i.c., in the

car when the search was conducted, when he states at page

10 of his brief to the lower court “Here Defendant Blum

Was legitimately on the premises—i.e., iin the ear—when the

ear Was searched.’’ This is not a fact of the present case,

Defendant was not in the car. but in fact in the police

station and had, along with Fisher. been identified by the

victims of the two robberies prior to the search of the Sylvia

Fisher car.

The Commonwealth's brief direets our attention to two

cases from other jurisdictions holding that defendants, who

were passengers in automobiles, had no standing to object

to the search of the automobile without the benefit of a

search warrant, even though the search was not found to

he incident to a lawful arrest: State r. Edwards. 197 Kan.

146, 415 P. 2d 231 (1966) and State of Maine v, Littlefield,

218 A. 2d 431 (Maine) (1965). In each of these cases, the

objecting defendants were in the custody of the police when

the search was performed. We, therefore, have great dif-

ficulty in bringing ourselves to conclude that the mere act

of operating the searched automobile at a time prior to the

search gives the defendant Blum an exalted position of a

person having a possessory interest in the automobile or in

AS Opinion (Bucks Co. Crim. Courts)

being legitimately on the premises at the time of search,

when the record clearly reveals that she was elsewhere.

There is no dispute but that the items seized were the

property of Fisher and the automobile out of which they

were removed was titled to a Sylvia Fisher. The record

totally fails to support the position that the defendant was

the owner or possessor of the items seized, or legitimately

in the automobile when the search was conducted. The

record, read in a light most advantageous to the defendant,

gives rise at the best to a consentual operation of the Cadil-

lave, granted to the defendant by Fisher. If an analogy to

civil law is permitted, and we believe it ix for limited pur-

poses, Commonwealth v. Bovaird, 375 Pa. 47, 95 (1953) ; it

cannot be said that Blum possessed any possessory interest -

in or to the Sylvia Fisher automobile by virtue of auy bail-

ment. The record is totally and completely silent of any

evidentiary facts to the effect that Blum was operating the

vehicle with the consent of the owner, or that delivery of

any type, that is actual or constructive, was made by Sylvia

Fisher to Blum. To the contrary, the only vestige of pos-

session existing in Blum to the searched premises, Le., the

Cadillac, was her accommodating act of driving the vehicle

for Fisher as the latter’s operating privileges had been sus-

pended. Therefore, the defendant lacks standing to raise

the Fourth Amendment argument since in her pre-trial

motion to suppress she neither alleged nor subsequently

established the requisite interest in either the automobile

searched or the property seized: United States c¢. Grosso,

358 Fed. 2d 154 (Third Cireuit, 1966) reversed on other

grounds, 390 U.S. 62, 19 L. ed. 2d 906 (1968).

Counsel for the defendant cites, in his brief, numerous

eases dealing with the search of vehicles performed with-

out the benefit of a search warrant and contends that in

those cases there is no suggestion that the driver or pas-

Opinion (Bucks Co. Crim. Courts) A9

senger has no standing to raise the protection of the

Fourth Amendment. We believe that the cases so cited

are distinguishable from our instant case in at least two

particulars: (1) in many of the cases cited by defense

counsel the question of standing had not been raised, and

(2) where it can be ascertained from the opinion it appears

that in the cases where the problem of standing was raised,

or may have been raised, the person aggrieved by the

search was present in the vehicle at the time that the search

was conducted,

Nor can we comprehend the defendant’s argument that

the defendant was placed ‘*. . . on the twin horns of a

dilemma—on the one hand saving that she does not have

sufficient possession and control over the car to raise the

constitutional objections, while on the other hand saying

that anything found therein can be used against her in

evidence . . .*’ This argument, to us, does not hold

water. Certainly if the gun, sunglasses and gloves had

been seized from the home of Fisher without procuring

a search warrant and later identified by Fisher at the

time of trial as paraphernalia used by him, along with

Blum, in perpetrating the hold-ups, we could conclude with-

out any qualms whatsoever that Blum would not have had

. Standing to suppress the objects seized. We can see that

Blum would have been met with a dilemma when such

evidence was admitted into evidence, for where such physi-

cal evidence is coupled with the testimony of Fisher as to

having had these objects in his ear or on his person while

with Blum, it would have been most condemning evidence

against Blum. The fact that evidence may be so condemn-

ing or convicting in its effect is not and néver has been

the test of whether it should be suppressed. The test

has always been whether it a¥as procured in violation of

her rights against official invasion of her privacy and the

security of her property.

A10 Opinion (Bucks Co. Crim. Courts)

The hearing judge, being the same person as the trial

judge and the writer hereof, by oral order refused to

suppress the aforementioned objects on the additional

theory that these objects were procured incident to a

lawful arrest. Initially, or at least such was our impres-

sion, the Commonwealth urged this proposition upon the

court at the conclusion of the taking of testimony at the

suppression hearing. We note, however, that the Common-.:

wealth has either retreated from this position due to its

interpreation of the holding in Preston v. United States,

876 U.S. 364, 11 L. ed, 2d 777 (1964) or, in the alternative,

contends that the court bottomed its holding on this peg

against the wishes of the Commonwealth. In either event,

the Commonwealth disagrees that this search was incidental

-to a lawful arrest.

For reasons previously outlined we do not feel obliged

to lean on this phase of our ruling as we are satisfied that

lack of ‘*standing’’ alone is sufficient to sustain our posi-

tion. Nevertheless, and not motivated out of stubborn-

ness, we are obliged to hold that this was a search inciden-

tal to a lawful arrest. 7 i

- Defense counsel has stated in his brief of June. 19, 1967

to the Superior Court (page 3) that they (Fisher and

Blum, were formally placed under arrest at 7:23 P.M.

We agree that. the record supports this fact. It appears,

therefore, that the status of the defendants Blum and

Fisher, between the time of being stopped at 6:59 P.M.

to 7:23 P. M., was similar to the status of the defendants

in Commonwealth vr. Howell, 213 Pa. Superior Ct. 33 (1968),

that is to say, that the defendants wére being detained by

police based on, at least, the reasonable suspicion that de-

fendants had committed a crime. This reasonable suspi-

cion changed to probable cause to believe that the crimes

of armed robbery were committed when the victims thereof

identified the defendants as the perpetrators. It was im-

Opinion (Bucks Co. Crim. Courts) All

mediately following this identification that Blum was placed

under arrest. It is difficult, if not impossible, to conceive

of any logical argument being made by defense counsel

to the effect that the police, at the time of the arrest, did

not possess reasonable and probable cause to believe that

the defendant had committed a felony: Commonwealth vr.

Brayboy, 431 Pa. 365 (1968). As previously noted, up to

this point the Cadillac had not been searched. No search .

prior to the arrest could have been justified without a war-

rant. At the time of the arrest, the car was not at police

headquarters but was in the act of being towed thereto,

The search took place immediately after the Cadillac ar-

rived at headquarters. We do not find, therefore, that

Preston v. United States, supra, is controlling. We are

satisfied that the search of the Cadillac automobile was

substantially contemporaneous with the arrest of the de-

fendant. We wholeheartedly adopt the reasoning of Judge

McLaughlin in United States +. Dento. 382 Fed. 2d 361

(Third Circuit, 1967), cert. denied 389 U. 8. 944,19 L. ed.

2d 299 (1967); reh. den. 389 U. S. 997, 19 L. ed. 2d 502

(1967). We find the factual aspects of the Dento case

startlingly similar to the facts presently before us.

While it may be the prudent and wise act at this point

to place this phase of the case to rest, we feel compelled,

nevertheless, to touch upon one other facet that causes

us-some consternation, As stated, Fisher entered a plea

of guilty and testified for the Commonwealth, His testi-

mony not only implicated Blum in the commission of these

two armed robberies, but also related that he had a certain

gun, dark glasses and gloves, during the perpetration

thereof. This testimony, subject. to proper instructions

to the jury, was admissible. It would be reaching an

asinine result if an accomplice could verbalize through

testimony that he had certain physical objects used by

him in hold-ups, that he stowed the gun, ete., in the ear

— — a a . .

Al2 Opinion (Backs Co. Crim. Courts)

driven by his partner in the crime thereafter, bat would be

prevented from identifying these objects to the jury at

the time of the trial. Uf thi« ix the resalt strived for on

behalf of the defendant Blum. then it would be the Com

monwealth that wouk! be placed on the horn« of a dilemma.

If such items could not be physically shown to Fisher and

in that manner brought to the jury "s attention, the defense

could, in its closing <peech, comment and argue to the jury

that Fisher's te-fiimony ~houk! not be accepted as credible

as the physical object. were not identified or their absence

explained. It <trike+ us that fair play woukd dictate, even

if no such argument was made, that the trial judge ~houkd,

in his charge, advise the members of the jary that a gun,

a pair of gloves and -unglas-«. belonging to Fisher were

obtained by the police, but for reason. with which the

jurors should not be concerned these physical objects can

not be exhibited at this trial, Without such in«truction,

the jury could draw,an unfavorable inference a< to the

credibility of Fisker’. te«timony and, when thix logical

inference is coupled with the required language of the

court's charge ax it dealx with the eredibility of an accom.

plice’s testimony, to our way of thinking, would place the

Commonwealth in a most unenviable and unrealistic po-i-

tion.

The defendant next maintains that the trial judge

erred in charging that she could be convicted on the un-

corroborated testimony of an accomplice. The charge cor.

rectly embodied the law of Penn<ylvania on thix point

and there is no rule of law in this jurimdiction forbidding

a conviction on the uncorroborated testimony of an ac-

complice: Commonwcalth ¢. DiDie, 22 Pa. Superior C1.

51 (1968).

It is advanced by the defendant that error was com.

mitted when the trial judge charged that an inoperative

or unloaded weapon constitutes an ‘offensive’ weapon

Order (Backs Co. Crim. Courts) ADB

within the statutory definition of armed robbery. Although

an inoperative or unloaded gun may not be classified ax a

“deadly weapon, the manner of it< uxe and the reaction

it cam-es makes it al ‘‘offensive’’ weapon: Commoncealth

0. Johnoon, 22 Pa. Superior Ct. 1 (1968).

It is argued by the defendant that the trial judge

erred in the charge given to the jury on conspiracy and

in the uve of the word “should” when referring to the

duties of the jurors, A reading of the entire charge re-

veals that these assertions are without merit. Reversible

error cannot he predicated upon i-olated portions of the

charge taken out of context, if the charge asx a whole had

adequately and properly covered the subject: Common-

wealth © Scoleri, 299 Pa. 110 (1960). Instructions to a

jury must be read and considered in their entirety: Cow.

monwenlth ©. Lopinson, 427 Pa. 284 (1967).

With respect to the remaining questions raised in the

motion for a new trial, the ix<ue of the defendant "« guilt,

we firmly believe, was properly left to the jury who ren-

dered a verdict of guilty.

Therefore, in accordance with the ions reached

herein we enter the So

Ax Now, this 22nd day of November, 1968, the defend-

ant’s motion for a new trial is refused and denied. De

fendant Sharon Lee Blum is direefed to appear for sentenc-

ing at a time to he fixed by the District Attorney of this

county.

Ry THE COURT,

Pavu. R. Beckeer, J.