*1 Appellant. v. Dennis, Commonwealth Submitted June 1974. Before Watkins, J., P. Jacobs, Hoffman, Cercone, Price, Voort, der Van JJ. Spaeth,
Douglas Packel, Riblet and John Assistant De- W. fenders, appellant. Defender, and for Ziccardi, Vincent J.
Neil Kitrosser, Richman, and Sendroiv, David Mark Goldblatt, H. Attorneys, Steven Assistant District Abra- Gafni, Deputy Attorney, ham J. District F. Emmett Fitzpatrick, Attorney, Commonwealth, ap- District pellee.
Opinion September 22, J., 1975: Voort, der Van Appeal Judgment taken from of this Court Sen- by Judge following tence rendered Calvin T. Wilson non-jury September Appellant 13, trial on 1974. was adjudged guilty possession with intent to deliver controlled substance.1 Oral motions for new trial and judgment arrest of made and were denied. Prior Judge argument commencement trial, heard Wilson appellant’s suppression claim; as to relief testimony incorporated denied, and the in the Substance, Drug, 1. A violation of “The Controlled Device and Act”, 64, April (a) (30), Act P.L. No. Cosmetic § (a) (30). P.S. §780-113 began immediately proceedings thereafter. trial which Philadelphia Depart- 21, 1972, the Police On October prowling seen that two men were ment had received a call Two vicinity area. in the a residential Sansom, of 48th plainclothes responded and car officers in an unmarked appellant co-defendant, observed one Shelton and his up porch. other Gregor, Two one of whom went car, came to the officers, in a marked uniformed and things. group area Each and also observed the same together, officers observed the two men walk a distance together part, opposite and then come directions, walk in again. place period This took of about ten minutes. over began Shortly to enter an parked nearby, automobile time the uniformed position pulled ap- officers car as to block their into so pellant’s plainclothes approached egress; officers Thereupon, the oar on foot. uttered an oath and stopped arrested, ran. He was and was with co- *3 incident to arrest followed. An officer defendant. Search right appellant’s pocket package removed from rear a eight by size, wrapped five inches foil and contain- ing bundles, glassine six each of contained 25 packages powder of a and later white estab- suspected, lished, to be heroin.
Appellant argues probable that there was no cause for arrest and that evidence found in a search incident suppressed. disagree. thereto should have been It We supported by is clear that a arrest warrantless must be probable existence cause. See Commonwealth v. Anderson, Superior 19, (1973). Ct. evidentiary probable “The use of evidence seized without proscribed.” cause to arrest or search is likewise Ander son, Superior 22. To determine the existence supra, Ct. probable cause, police we look to whether the officers reasonably could have believed that afoot; crime was “ only probability, prima is and not a facie show ‘[i]t ing, activity of criminal probable that is the standard of
351 ” (1964).’ 89, 223 85 S. Ct. cause. Beck v. 379 U.S. Ohio, 329, A.2d Murray, 326, 263 Pa. Commonwealth v. 437 886, (1970). circumstances It the coalescence of 888 is there existed in the instant case which convinces us that probable prowling. call The radio cause to arrest regarding although unsubstantiated, alerted prowling, police. Observation furtively, up they wandering and down showed were that a going up onto of a area and sidewalks residential challenged porch night. of the homes at one When point appellant began hasten to to run. police, We give standing above, would alone, out none of the report an probable cause —not the unsubstantiated Pa. Falk, 221 informant, v. see Commonwealth presence (1972) 43, ; not mere 290 A.2d 125 flight of Anderson, supra; area, men in not see 590, appellant, Pegram, v. see Commonwealth the above circum A..2d hold 301 695 We placed whole, the officers as a stances taken being com them that a crime was inquiry, led to believe probable arrest, cause for Com mitted and constituted 246 DeFleminque, 163, A.2d monwealth v. (1973), Young, Commonwealth v. being probable incident arrest, a search
There cause permissible. that a search “It well settled thereto is is exception to traditional to a lawful arrest incident requirement Amendment.” warrant of the Fourth L. 467, 38 Robinson, 94 Ct. v. 414 U.S. S. U. S. case, probable we find cause (1973). In this 2d Ed. in- made and we further a search find produces does of crime cident thereto which suppress motion that evidence. *4 argues Appellant co-defendant’s that since further grant following his motion case-was a dismissed Court, Municipal his the then suppress while before granted. suppress have been likewise should motion to that the facts as to and It is clear Opinion Dissenting Opinion. [236 Court — materially differ did not the co-defendant flee. in Notwithstanding the difference, material the Common appeal ruling wealth Municipal did not in the Court’s favor of co-defendant. Furthermore a Court Common by Pleas court, bound on a decision of an inferior theory ap a estoppel, party, of collateral where a here pellant, party Municipal was not a the the motion in Philadelphia Inc., Court. Arms, See v. Stradford Commonwealth Appellant’s remaining reasoning out of such is further motion holding Municipal Court’s determination in regard appellant’s to co-defendant does not touch See Thal v. Krawitz, 110, 73 A.2d
Judgment of sentence affirmed.
Jacobs, J., concurs in the result.
Dissenting Opinion Hoffman, J.: agree I cannot revealed the search which presence of narcotics incident search conducted ato lawful arrest. simply facts this case can be stated: On
night of October 21, 1972, the officers received a radio call “prowling” to the effect that two men were in the Philadelphia. area of 48th and Sansom Streets in Four officers, separate cars, two arrived area along observed and his co-defendant walk proceed sidewalk, part, opposite to walk porch. Approxi- directions. One of the walked men mately ten repeated. minutes later the same scenario Eventually, the two men came and walked to- parked they ward a automobile. As were about to enter police vehicle, approached. Appellant uttered an attempted oath stopped but was flee, arrested. appellant’s person A glassine search of revealed 25 packets of heroin. appellant’s “prow-
At time
crime
ling”
was defined as follows: “Whoever at
time
*5
maliciously
maliciously prowls around a dwel
loiters or
by another,
is
belonging
occupied
ling house...
to or
added).
guilty
18 P.S.
(Emphasis
of a misdemeanor . . .”
purpose
has been
scope
the statute
§4418.1
obviously intended
defined
our Court: “This Act was
punish
only
are bent
persons
to
those
who at
peeping
private
on
citizens in their
into
affairs of
at
dwellings,
are found
but also those individuals who
dwellings
purpose
or
or reason
near
without
lawful
presence
only
preparation
explained in
tuhose
can
he
some
pro
attempt
illegality
or
The mischief
or crime.
for
legal justification
act,
hibited
that
intentional
is
without
purpose injury
privacy,
excuse,
or
which has as its
person
property
or
v. De
another.” Commonwealth
Wan,
Superior
(1956)
203, 208,
181 Pa.
Ct.
(Emphasis
Supreme
approved
added). The
Court has
“ ‘Malicious,’
statute, has
this definition:
.as used
this
injury
‘[having]
purpose
been
defined to mean
as its
person
property
privacy,
or
of another.’..
(1971).
251, 256,
Dial,
Commonwealthv.
312, 315,
At the Commonwealth porch period very walked time some for short parked prior at a minutes to his which occurred absolutely There evidence of record no automobile. attempted appellant to enter would indicate that any privacy appellant residence, or that invaded the person’s any appellant Proof walked on a home. porch immediately almost came to the sidewalk back cannot' serve to a belief that was “ma- liciously” prowling. upon It incumbent Com- May 27, 1949, 1900, §1, P.L. 18 P.S. This 1. Act of §4418. Code, under the new Act of section has been reenacted Crimes Dec. 6, 1972, 334, §1, The statute has P.L. No. 18 Pa.C.S. §5506. Duncan, vague. upheld impermissibly been as not Commonwealth v. monwealth show that the officers had reason injure privacy, to believe “the intended to person walking property Merely or another.” porch immediately leaving provide cannot the nec- essary probable cause. prowling
Arrests convictions have been and/or upheld by appellate presented courts. The evidence cases, stronger meager those however, was far than the testimony provided example, in the instant For Commonwealth Hargrave, v. *6 (1968), passed A.2d 570 the defendants within twice fifty apartment building feet an while the officer passage, was their their third within view. On sight. the officer was out of The defendants went to the apartment parking lot, standing one at the rear of the car in the manner of a lookout as the other entered building. Similarly, the facts of Commonwealth v. Nicholls, (1966), Pa. presented stronger appellant attempted There, open peeped the door and the window in the com pany burglar. Finally of a known in Commonwealth v. Williams, (1958), galoshes wearing dry was rubber gain entry and climbed a fence to ato hotel for purpose committing adultery.2 produced by The the Commonwealth in the instant finding probable case cannot cause prowling. to arrest for result, malicious aAs the arrest unlawful, search conducted incident thereto was likewise The evidence obtained unlawful. therefore, improperly at search, admitted trial. I would reverse and remand a new trial. Duncan, supra, inapposite. 2. Commonwealth v. “ Supreme granted Court allocatur limited ‘to the constitutional vagueness meaning issue of issue of... the use and ” word “around” the statute.’ at 321 A.2d 918. Thus, Supreme Court in Duncan assumed that element of present. maliciousness was