*1 For the forth in my dissenting reasons set opinion in Commonwealth Honigman, supra, therefore, vacate a new grant sentence trial. Gillis et al., Appellants. Before P. J., June 1970.

Argued Wright, Wat Jacobs, Hoffman, Spaulding, Montgomery, kins, JJ. Cercone, Public Defender, Assistant Vikoren, B.

Harold O’Brien, Assistant District Attorney, F. Michael him for Com- Clark, District Attorney, F. Ward with monwealth, appellee. 18, 1970: Curiam, September

Opinion Per affirmed. of sentence Judgments by J.: Opinion Concurring Hoffman, on indictments a jury were convicted Appellants stolen larceny, receiving charging *2 sentence, of From conspiracy. and goods, fol- facts are as The relevant appeal. they bring lows on January 10, 1968, after 7:00

Shortly P.M., her in footsteps Mildred Kaufman heard running the when returned home. house, Upon opening she a she man whom she described as short, saw door, black The ar- and in dark or white, clothing. later the rear door its rived minutes and found ajar, lock bent also sets open. and saw two assembly They of adult in from the back footprints snow, leading of the house. One officer remained in the Kaufman house determine the extent of the Rooms were found in and Mrs. Kaufman disarray, confirmed that certain jewelry were pieces money missing. The other followed the footprints approxi- city two the direction of mately blocks, Oak Big Service Station.

While this investigation was two talcing place, officers, unaware were burglary, summoned to Oak Service a Big Station as result the owner’s about two men complaint suspicious rides soliciting from customers. When they one officer arrived, inter- rogated station owner. The owner stated he was because pair they seemed anxious a ride and had get stationed themselves in the area his where kept unattended cars service. awaiting The officers proceeded question both appellants, it having found to frisk necessary them first. Appel- lant Grillis told officers and appellant Boy- from out of kins were town and that were looking He for rides home. asserted that they were in town to one Betty see a Jackson girl, whom they had met at but fol- her, riding Bono’s Cafe. They of her car. she ordered them out lowing argument, The appellants’ were dissatisfied with officers “technical ar- them under stories and decided to place and take to the station. They rest” them to that On pursuant frisking appellant the officer heard Boykins, jingling and, upon reaching into down patted his felt then quarters. They pockets, on reached appellant Gillis and, feeling bulge, felt watch bands and other items.

At about the same the officer who had been time, the Kaufman arrived at burglary service advised the officers of noted that Gillis fitted the of one of description burglars. told that under arrest for and were taken to the police *3 where the found in items appellants’ pockets were seized.

Numerous trial errors were raised but by counsel, error only our here. alleged merits attention Both that their Fourth appellants argue Amendment rights were violated unlawful and seizure and that the court below erred in denying appellants’ mo- to tion the evidence discovered. suppress thereby The Commonwealth contends that the officers acted of their within scope constitutional authority a limited frisk of conducting They argue that where a officer observes unusual police conduct to reasonably leads him conclude that criminal afoot be and that activity may person with whom may he is be armed and dealing dangerous, is au to conduct thorized a carefully limited search of the of such in an outer clothing person attempt discover be against used weapons him. v. Terry Ohio, 1, 30-31, Ct. 1868, 1884-1885 Commonwealth v. 434 Hicks. (19681 Pa. 153. A. 279 (1969). 2d 276, 253

162 however, search, of protective type

To justify facts particular to point he able must officer a police individual that inferred reasonably from which on the part faith dangerous; good armed 392 York, v. New Sibron not enough. officer is Ohio, v. ; Terry 1903 (1968) 1889, 88 S. Ct. 40, 64, U.S. 263 Pa. 338, 437 Berrios, v. Commonwealth supra; Hicks, supra. Commonwealth 343 (1970); A. 2d 342, who officer bar, In case at no tes- There is conduct. no observed such appellants reason officers had indicated that that timony If dangerous. armed and believe in danger that they did believe the officers been they from concealed weapons, harm before they for weapons justified frisking that The fact interrogation. had begun them indicates after questioning frisked appellants or that fearful for their own safety that were not in the area. others be lawful if it were incident The frisk would also arrest. Commonwealth v. 421 Ellsworth, A arrest, 253 lawful must be predicated upon probable cause, however, if a arrest cannot be justified by warrantless search incident thereto a warrantless is unlaw- cause, Goslee, ful. 427 Pa. 403, 406-407, A. 2d who put “technical arrest” under no had appellant knowledge crime any had committed *4 frisk. of the His assertion at the time and that he did looked believe their story for an justification is insufficient Though need not hand arresting evidence which an arrest convict, would suffice without a must stand firmer upon ground warrant than mere sus- v. One 1958 Plymouth picion. Sedan, 539-540

16B upon the instant be sustained However, through ground. If the another evidence discovered by independ- unlawful frisk would have been obtained ent means, the evidence so obtained “taint- is not original illegality. Wong ed” Sun v. United States, Ct. upon investigating the arrival of

Here, the officer cause came into exist- arrest point, specific ence. At this there was evidence nearby crime committed a few minutes before, description given there also a one of fitted ap- Had first two officers released pellants purpose ques- after a brief detention for the tioning gap as should have in time be- done, tween their release the arrival of the third officer highly would have a matter of seconds. It is unlikely under these circumstances that capture subsequent could have avoided and a search of persons. during illegal The items discovered thus frisk would have been found as a result of a search incident arrest after the arrival of the officer who The search seizure occurred at the station, therefore, sufficiently distinguishable purged was also to be taint of the bad frisk. affirming therefore concur in convictions. Appellant.

Commonwealth v. Shaw,