Commonwealth v. CanningCommonwealth v. Canning
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- Before:
- Montgomery
Appellant Richard Canning was convicted in Philadelphia Municipal Court of possession of a controlled substance. He was sentenced to thirty days in the county jail. No direct appeal was filed. Appellant then filed a petition under the Post Conviction Hearing Act, 1 alleging denial of the right to appeal. Appellant was granted permission to appeal nunc pro tunc. This appeal, raising only the issue of whether the Court of Common Pleas erred in reversing the Municipal Court’s suppression order, followed. Finding no error, we affirm.
On July 5, 1985, Philadelphia Police Officer Robert McCarthy responded to a radio call to investigate complaints that a stranger was pacing back and forth on a neighbor’s porch. When Officer McCarthy arrived, he observed appellant pacing back and forth on the front porch of 4420 Howell Street. Appellant was wearing no shirt, shoes, or socks. When Officer McCarthy asked him what
Appellant filed a motion to suppress the drugs which was granted by the Municipal Court. The Commonwealth appealed that order to the Court of Common Pleas and it was reversed. Appellant was then tried and convicted in Municipal Court. On this appeal, appellant contends that the Court of Common Pleas erred in reversing the suppression order.
Appellant first argues that the search was outside the permissible scope of
Terry v.
Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In
Terry,
the United States Supreme Court articulated a police officer’s “narrowly drawn” authority to conduct a reasonable search for weapons for the officer’s protection.
Id.
at 27, 88 S.Ct. at 1883. The officer may pat down or frisk a suspect for weapons only if he reasonably believes that criminal activity is afoot, and that the suspect may be armed and dangerous.
Id.
The officer must be able to articulate specific facts to justify his belief that the suspect may be armed and dangerous.
Ybarra v. Illinois,
444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979). Moreover, the scope of a
Terry
search is limited. Because the “sole justification of the search ... is the protection of the police officer and others nearby, ... it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.”
Terry v. Ohio, supra,
392 U.S. at 29, 88 S.Ct. at 1884.
The search can be justified, however, as a search incident to an arrest.
Commonwealth v. Plusquellic,
303 Pa.Super. 1, 449 A.2d 47 (1982) (seizure proper if incident to an arrest). At the time of the incident, the Rules of Criminal Procedure provided that in non-traffic summary cases, a defendant could be arrested without a warrant when such arrest is necessary in the judgment of the police officer, the officer is in uniform or displays a badge or other sign of authority and such arrest is authorized by law.
The Municipal Court judge apparently relied, at least partly, on the fact that appellant was never charged with public drunkenness in order to find that probable cause was lacking. However, that is not a controlling factor. Probable cause means only the probability and not a prima facie showing of criminal activity.
Commonwealth v. Murray,
437 Pa. 326, 263 A.2d 886 (1970). It is, of course, less than evidence which will justify a conviction.
Id.
Once probable cause is established, it does not dissipate simply because the suspect is not charged with the particular crime which led to the finding of probable cause. There are many reasons why the officer may not have filed the formal charge: upon reflection, he may have determined that there was insufficient evidence to warrant a conviction; he may have determined that society’s interests were better served by exercising mercy; he may, as in the instant case, have filed more serious charges and simply dispensed with the summary offense. None of these scenarios affects the finding of probable cause, however, once it has been established because probable cause is based on the facts and circumstances
known at the moment of the arrest, Commonwealth v. Mackie,
456 Pa. 372, 320 A.2d 842 (1974), and not on what may or may not occur after the arrest.
Id.
(subsequent events irrelevant to determination of probable cause);
Commonwealth v. Jeffries,
454 Pa. 320, 311 A.2d 914 (1973) (evidence discovered after arrest may not be considered in determining probable cause). Therefore, be
Judgment of sentence affirmed.