Com. v. Kazior

• Decision Date: 03 January 1980
• Citation: 410 A.2d 822,269 Pa.Super. 518
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. John J. KAZIOR.
• Court: Pennsylvania Superior Court

Page 822

410 A.2d 822

269 Pa.Super. 518

COMMONWEALTH of Pennsylvania, Appellant, v. John J. KAZIOR.

Superior Court of Pennsylvania.

Argued Dec. 6, 1978.

Filed Sept. 14, 1979.

Petition for Allowance of Appeal Denied Jan. 3, 1980.

John J. Burfete, Jr., Asst. Dist. Atty., Norristown, for Com., appellant.

Stephen G. Yusem, Norristown, for appellee.

Before VAN der VOORT, WIEAND and LIPEZ, JJ.

WIEAND, Judge:

John J. Kazior, the appellee herein, was arrested and charged with burglary, ¹ theft, ² receiving stolen property, ³ conspiracy, ⁴ possessing instruments of crime, ⁵ and possessing a prohibited offensive weapon. ⁶ Following a pre-trial hearing, the trial court found that appellee's arrest had been illegal. Therefore, the court entered an order which (1) suppressed physical evidence removed from appellee's vehicle, (2) suppressed appellee's confession, and (3) quashed the informations against appellee. The Commonwealth appealed.

An appeal by the Commonwealth is proper. If unreversed, the trial court's order will result in a termination of the prosecution. This is readily apparent from the court's order and also from the record. It seems clear, therefore, that we should hear and decide the Commonwealth's appeal. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963).

The court's order quashing the informations was clearly in error. "It has long been the law in this and in other jurisdictions that 'the mere fact that the arrest of an accused person is unlawful is of itself no bar to a prosecution on a subsequent indictment or information, by which the court acquires jurisdiction over the person of the defendant.' " Commonwealth v. Krall, 452 Pa. 215, 219, 304 A.2d 488, 490 (1973). See also: Commonwealth v. Walker, 243 Pa.Super. 388, 365 A.2d 1279 (1976); Commonwealth v. Mills, 235 Pa.Super. 173, 340 A.2d 900 (1975). Thus, even if the trial court's determination of an unlawful arrest were correct, an order barring prosecution on the subsequent information was improper.

We also disagree with the trial court's conclusion that appellee's arrest was unlawful. The undisputed evidence establishes a legal, warrantless arrest based on probable cause. On April 27, 1977, at or about 6:00 o'clock, A.M., Officer Charles Duffy heard on his police radio an announcement that a burglar alarm had sounded at Sousan's Pharmacy on York Road, in Elkins Park, Cheltenham Township. Duffy was then at or near the intersection of Church Road and York Road and realized that the pharmacy was only about 125 yards from his position. He looked down York Road and observed two men leave the front of Sousan's Pharmacy and run across York Road. One of the men, he noted, was wearing a green army jacket. Duffy turned into York Road to give pursuit but, despite the absence of traffic, lost sight of the two men. When he arrived at the drug store, he turned into Stahr Road, a side street opposite the pharmacy, where the men had run. Unable to find them, he returned to York Road where he met Officer McGinn, who, upon arrival, had examined the door of Sousan's Pharmacy and found a pane of glass broken therein. Together, they searched the area until their attention was directed by a resident to a vehicle parked at the intersection. Duffy and his fellow officer looked into the vehicle and saw appellee seated on the front floor, under the steering column, with his head on the driver's seat. Another young man was in a similar position on the passenger's side of the vehicle. The police knocked on the windows of the car, and appellee unlocked the door. As appellee emerged from the car, Duffy observed a green army jacket on the floor of the car where appellee had been crouched. When Duffy picked up the jacket, a pair of pliers fell from a pocket. Under the jacket was a "dagger-type knife." Also in plain view in the car were a flashlight and an empty jar with an amphetamine label.

Appellee was placed under arrest and taken to the Cheltenham Township police station. He was preliminarily arraigned on burglary related charges at 10:00 o'clock, A.M. Thereafter, a search warrant for appellee's car was obtained and executed and, because of items found in the trunk of the car, additional drug related charges were brought. Appellee was told of the items found in his car and asked if he wanted to make a statement about them. He declined. He was then taken for preliminary arraignment on the additional drug charges, after which he was returned to the cell block. He was offered food, which he refused, and was permitted to make several telephone calls. Shortly before noon, the making of a statement was again discussed with appellee, and he agreed to give one. He was then advised of his Miranda rights, after which he answered a series of questions. The answers were reduced to writing and signed by appellee.

A legal arrest without a warrant depends upon probable cause. Commonwealth v. Pinney, 474 Pa. 210, 378 A.2d 293 (1977); Commonwealth v. Bishop, 425 Pa. 175, 228 A.2d 661 (1967), cert. denied, 389 U.S. 875, 88 S.Ct. 168, 19 L.Ed.2d 159 (1967). Probable cause exists if the facts and circumstances which are within the knowledge of the police at the time of arrest, and of which they have reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that a suspect has committed or is committing a crime. Commonwealth v. Powers, 484 Pa. 198, 398 A.2d 1013 (1979); Commonwealth v. Culmer, 463 Pa. 189, 195, 344 A.2d 487, 490 (1975); Commonwealth v. Jones, 457 Pa. 423, 428, 322 A.2d 119, 123 (1974); Commonwealth v. Garvin, 448 Pa. 258, 262, 293 A.2d 33, 35-36 (1972); Commonwealth v. Bishop, supra. The burden of showing probable cause is on the Commonwealth. Commonwealth v. Holton, 432 Pa. 11, 14-15, 247 A.2d 228, 230 (1968). The standard of probable cause, however, must be applied to the totality of the circumstances facing the police. Facts insufficient to justify an arrest if considered separately may in combination supply probable cause. Commonwealth v. Roscioli, 240 Pa.Super. 135, 138, 361 A.2d 834, 836 (1976). In Commonwealth v. Tolbert, 235 Pa.Super. 227, at p. 230, 341 A.2d 198, at p. 200 (1975), this Court said: "When we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element. . . . We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might. . . . Finally, we must remember that in dealing with questions of probable cause, we are Not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same 'beyond-a-reasonable-doubt' standard which we apply in determining guilt or innocence at trial." Commonwealth v. Devlin, 221 Pa.Super. 175, 289 A.2d 237 (1972).

Applying these standards to the facts of the instant case, the existence of probable cause appears with certainty. Officer Duffy learned that a burglary had occurred or was then in progress and saw two men running from the burglarized drug store. A search of the area produced two men hiding on the floor of a vehicle parked across the street from the drug store. When they emerged, there was in plain view on the floor of the car the green army jacket worn by one of the men as he ran from the drug store.

The existence of probable cause to arrest appellee is also apparent from the decided cases. In Commonwealth v. Roscioli, supra, the arresting officer had been on routine patrol when he saw two white males "duck" between parked vehicles. He saw the defendant place something on the ground, recognized him, and realized that he did not live in that neighborhood. He then received a radio report of a burglary in progress in the neighborhood, at a location approximately 40 seconds walk from where defendant had been observed. The defendant was stopped, asked what he was doing, and placed under arrest. The article which had been placed on the ground was retrieved and found to be a cigar box containing $180. These circumstances were "sufficient to warrant a prudent man in believing that the citizen had committed or was committing an offense."

In Commonwealth v. Jones, supra, a police officer received information via police radio that a robbery had been committed, together with a general description of the robbers and the direction of their flight. He came upon the defendant, who fit the description, six blocks from the scene of the robbery. Defendant was walking rapidly, breathing heavily, perspiring profusely and furtively looking over his shoulder. These facts constituted probable cause, it was held by the Supreme Court, to justify a warrantless arrest.

In United States v. Young, 355 F.Supp. 103 (E.D.Pa.1973), the court ruled that officers who knew that a bank robbery was in progress, but were not given a description of the perpetrator, had probable cause to arrest the defendant when they noticed him trotting or running across the street from the bank and looking backwards.

The appellee argues that Duffy's information concerning a burglary was hearsay derived from the police radio. Hearsay information transmitted by police radio may be considered in...