Commonwealth v. Ferraro, Appellant.
Superior Court of Pennsylvania
December 1, 1975
232 Pa. Superior Ct. 270
WATKINS, P. J., dissents.
dealings between the minor claimant and the Apawana Golf Club make it a reasonable assumption that a contract of employment existed between them... The fact that the players for whom Fanning caddied rather than the defendant paid his wages does not militate against this conclusion.” Fanning, supra at 184, 82 A. 2d at 585-586. In Fanning, however, minor claimant worked nearly every day for a period of one month prior to his injury, received “regular” wages in the sense that he was paid each time he caddied, and the record did not show that minor claimant was working “for the fun of it” rather than for monetary compensation.
In Barr v. B & B Camper Sales, supra, a retired railroad employee became friendly with the owner of defendant from whom he had purchased a camper. For a period of two years, claimant voluntarily rendered services to defendant when his efforts could be utilized. Claimant received no compensation during this period. “However, in April 1967, the relationship between [claimant] and appellant focused into a different posture. The [claimant‘s] visits and service activities increased in number. He made repairs to campers and trailers; demonstrated campers and trailers; travelled to secure new campers and trailers; operated the sales lot while appellant was on vacation and at night when appellant was not available; and purchased supplies for appellant. In addition, he had keys to the office and authority to draw checks when appellant, for any of many reasons, was not on the premises. During the period April 1967 through September 21, 1967, [claimant] was paid $390.00 by appellant.” Barr, supra at 326-27, 300 A. 2d at 306. The Court found an employer-employee relationship, but noted that the facts did not fit squarely within the usual master-servant concept.
In Hollen v. Workmen‘s Compensation Appeal Board and John Dospoy, supra, the claimant was compensated at an hourly rate.
Clarence D. Bell, Jr., for appellant.
Jeffrey P. Garton, Assistant District Attorney, Stephen B. Harris, First Assistant District Attorney, and Kenneth G. Biehn, District Attorney, for Commonwealth, appellee.
Appellant, Richard Ferraro, was arrested on August 19, 1971, and charged with larceny of an automobile and possession of burglary tools. Following the denial of his pre-trial motion to suppress evidence, appellant was found guilty in a non-jury trial of both charges. Post-trial motions were denied and appellant was sentenced to serve a three-to-six month term of imprisonment. This appeal followed.
The sole issue properly preserved for our review1 raises the legality of appellant‘s arrest. Appellant argues that his arrest was illegal and that the physical evidence seized incident to that arrest should have been suppressed. We disagree.
The relevant facts are as follows: On August 19, 1971, at approximately 1:15 a.m., a 1971 yellow and gold Cadillac automobile was stolen from an apartment complex located in Bensalem Township, Bucks County. The owner of the vehicle, alerted by the sound of the engine being started up, observed her car being driven away and immediately telephoned the Bensalem Township Police. Moments later, a Bensalem Township police officer, William Thompson, received a radio bulletin that the Cadillac had been stolen from an address located less than one mile from his present position. Due to road construction, Officer Thompson had to proceed east on Grant Avenue in Philadelphia in order to reach the Bensalem Township address. While driving east on Grant Avenue, Officer Thompson observed the described Cadillac in the west bound lane. Officer Thompson then made a U-turn to investigate further. This investigation was
In the meantime, a Philadelphia policeman, Officer Hughes, had observed Officer Thompson travelling east on Grant Avenue. Following Thompson, Hughes also made the U-turn and pulled alongside the Lincoln which was stopped behind the Cadillac at the traffic light. Officer Thompson alerted Officer Hughes that the Cadillac had been stolen and requested him to “cover” the Lincoln while he was securing the driver of the Cadillac. At the direction of Officer Hughes, who had drawn his service revolver, appellant turned off the ignition and alighted from the Lincoln. As appellant stepped out of the Lincoln, Officer Hughes observed in plain view on the front seat, a vise grip wrench and an open tote bag from which were dangling a “bunch” of car key blanks. Further examination of the tote bag revealed that it contained additional car key blanks, a pair of cutting pliers, a key-making device, a tool fitting the rear of an ignition lock, and a flashlight. A body search incident to appellant‘s arrest disclosed two automobile lock cylinders.
The Commonwealth, although conceding that probable cause did not exist for appellant‘s arrest at the time he was ordered to exit from the Lincoln, contends that the subsequent events, in plain view of Officers Thompson and Hughes, established probable cause for appellant‘s arrest. For the reasons set forth below, we agree.
Application of the foregoing principles to the case at bar leads us to conclude that the investigatory stop of appellant was lawful in light of the attendant circumstances. As the court below stated:
“Officer Thompson knew that a car with the unusual yellow and gold characteristics of the subject
Cadillac had been stolen only minutes before from a location only a short distance away and from the direction of which the suspect vehicle was proceeding. He unquestionably, therefore, had probable cause to pursue, stop and apprehend the operator of the Cadillac. In the course of so doing, he became aware of additional circumstances which gave him not unreasonable grounds for at least suspicion that possibly the operator of the closely following Lincoln was also involved. Additionally, both he and Officer Hughes of the Philadelphia police department (in whose bailwick (sic) these vehicles were then being operated) personally observed the driver of the Lincoln committing a violation of the summary provisions of § 1010 of the Vehicle Code, as amended 75 P.S. § 1010 , which prohibit an operator from following more closely than is reasonable and proper.”2
The lower court properly concluded that the unusual manner in which the Lincoln was being operated at this early morning hour created a reasonable suspicion that it was also involved in the criminal activity that was being investigated. Here, we have an officer in a marked police vehicle responding to a stolen car report when he observes what appears to be the subject automobile travelling in the opposite direction being closely followed by another automobile. When the officer makes a U-turn and attempts to check the license number of the subject vehicle he finds his efforts thwarted by appellant‘s intervening automobile for a span of 200 yards. In the words of Officer Thompson:
“The Lincoln seemed to be tailgating the Cadillac, stopping, making it impossible for me to get behind the Cadillac to get the registration.” Officer Thompson
We find that these facts constituted sufficient unusual conduct to justify a reasonable suspicion on the part of an experienced police officer that criminal activity was possibly afoot.
Accordingly, adequate grounds existed for temporarily detaining appellant for investigation. Moreover, we do not believe that simply because Officer Hughes drew his service revolver while directing appellant to alight from the Lincoln turned this investigatory stop into an arrest. As the Fifth Circuit Court of Appeals has observed: “It does not seem to us that, without regard to motive, solely because an officer draws his weapon, an investigatory stop is turned into an arrest. To require an officer to risk his life in order to make an investigatory stop would run contrary to the intent of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).” United States v. Maslanka, 501 F.2d 208, 213 at n. 10 (5th Cir. 1974). Instantly, in view of the late hour of the night and the serious nature of the crime under investigation, we think the officer was justified in taking appropriate measures to protect himself. And, although an arrest can be effected without formal words of arrest, in the circumstances of this case, the absence of such words indicate that appellant was initially detained merely for investigative questioning. See United States v. Richards, 501 F.2d 1025 (9th Cir. 1974).
Since the investigatory stop was lawful it follows that the officers had the right to be in the position from which they observed the vise grip wrench and the car key blanks
Judgments of sentence affirmed.
DISSENTING OPINION BY HOFFMAN, J.:
Appellant contends that he was arrested illegally and that evidence seized pursuant to that arrest should have been suppressed.
In the early morning hours of August 19, 1971, a resident of Bensalem Township, Bucks County, heard someone start her new Cadillac. She arrived at an open window in time to see the car being driven away and notified the Bensalem Township police immediately.
Shortly thereafter, at 1:20 a.m., Officer William Thompson received a radio alert that a 1971 Cadillac had been stolen from an apartment complex less than one mile from where he was situated. In order to proceed to the complainant‘s address, the officer crossed the Philadelphia line, and travelled east on Grant Avenue. While so doing, he observed a yellow Cadillac in the westbound lane of Grant Avenue. Thompson made a U-turn to investigate further. He also observed a Lincoln Continental, operated by appellant, “directly behind the Cadillac“...“the Lincoln seemed to be tailgating the Cadillac... making [it] impossible for me to get behind the Cadillac and to get the registration.” Thompson pulled alongside the Cadillac when the car was stopped at a traffic light at the corner of Grant and Frankford Avenues. He noticed that the lock cylinder on the left front door had been removed. The officer immediately placed the operator, Thomas DiCicco, Jr., under arrest.
Appellant and DiCicco were held on charges of larceny and possession of burglary tools. Pursuant to an October 7, 1971 preliminary hearing, the Grand Jury approved bills of indictment, number 1924, charging appellant with larceny,1 and 1924-1, charging appellant with possession of burglary tools.2 On August 9, 1972, appellant moved to suppress the physical evidence seized on August 19, 1971.3 After denial of that motion, appellant was tried and found guilty on both bills by the court without jury on November 8, 1972. Post-trial motions were denied on September 12, 1974. On November 1, 1974, appellant was sentenced to serve three to six months in the Bucks County Prison. This appeal followed.
Our Supreme Court has held that “when a police officer stops a vehicle he has ‘seized’ the vehicle and its
Swanger suggested that an officer must have probable cause prior to a stop: “We, therefore, hold before a police officer may stop a single vehicle to determine whether or not the vehicle is being operated in compliance with The Vehicle Code, he must have probable cause based on specific facts which indicate to him either the vehicle or the driver is in violation of the code.” 453 Pa. at 115, 307 A.2d at 879. (Emphasis added.) In Commonwealth v. Nastari, supra, this Court extended a “Terry”4 rationale to automobile stops; that is, in order to determine the identity of a suspicious individual or to maintain the status quo momentarily, a brief stop may be reasonable despite a level of suspicion less than probable cause. Nonetheless, “... it is... clear that an investigative stop of a moving vehicle to be valid must be based upon objective facts creating a reasonable suspicion that the detained motorist is presently involved in criminal activity.” Commonwealth v. Murray, supra at 61, 331 A.2d at 418. (Emphasis added.)
In the instant case, the officers did not stop appellant for tailgating, despite the fact that tailgating is a vio-
Therefore, I would reverse and remand for a new trial.