Com. v. Lovette

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtBefore O'BRIEN; NIX; ROBERTS; FLAHERTY, J., joined in this opinion and the concurring opinion of ROBERTS; McDERMOTT; ROBERTS; FLAHERTY; McDERMOTT
Citation498 Pa. 665,450 A.2d 975
Decision Date05 October 1982
PartiesCOMMONWEALTH of Pennsylvania v. Andre LOVETTE, Appellant.

Page 975

450 A.2d 975
498 Pa. 665
COMMONWEALTH of Pennsylvania
v.
Andre LOVETTE, Appellant.
Supreme Court of Pennsylvania.
Argued April 15, 1982.
Decided Oct. 5, 1982.

Page 976

[498 Pa. 667] John W. Packel, Chief, Appeals Div., Leonard Sosnov, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Mark Gurevitz, Philadelphia, for appellee.

Before O'BRIEN, C. J., and ROBERTS, NIX, LARSEN, FLAHERTY, McDERMOTT and HUTCHINSON, JJ.

OPINION

NIX, Justice.

In this appeal appellant seeks in the alternative discharge or the award of a new trial. In the first instance it is contended the evidence presented against appellant was insufficient as a matter of law to sustain the conviction. The alternative position, that at the very least the judgment of sentence must be vacated and a new trial awarded, is predicated upon the claims that the court erred in denying the suppression motion and the rejection of after-discovered evidence was improper. Although we do not accept appellant's assertion as to the insufficiency of the evidence, we do agree that he is entitled to a new trial because of an erroneous ruling on the suppression motion. 1

On December 15, 1976 at 3:15 p. m. Officer James McCoy, a member of the Philadelphia Police Department, was dispatched to 5115 Willows Avenue in response to an anonymous call to investigate "males with stolen property in a vacant house." Upon the arrival of Officer McCoy and his partner at the designated premises, they found stereo equipment, wrapped Christmas gifts, clothing, pottery and other items. Their inspection of the scene revealed across the driveway at 748 South 51st Street a rear door was broken [498 Pa. 668] down and that the hinges had been broken off. Officer McCoy entered the home and found drawers ajar and items strewn over the floor. Approximately 10 minutes after the officers' arrival at the scene, Mr. Harold Bennett appeared and identified himself as the owner of 5115 Willows Avenue. He stated that he had left his home between 10:30 a. m. and 11:00 a. m. that morning at which time the property was secured and no one had been given permission to enter in his absence. The examination of the scene also disclosed trails of footprints in a muddy plot of ground between Mr. Bennett's home and the rear of the vacant premise. Mr. Bennett identified the goods found in the abandoned premise as being taken from his home.

Officer McCoy began to patrol the area at which time he observed three males a block and a half from the scene of the burglary. The men attracted his attention because of the mud on their shoes. Appellant, a member of the trio, had a brown paper bag in his hand. The officer approached the group and they made no effort to avoid the encounter. The officer asked for identification and the three men were unable to produce any. The officer asked appellant what was in the bag he was carrying and appellant immediately replied that it contained a hat. Appellant showed the hat to the officer, at the officer's request, and stated that he had received it from a friend. In response to a question concerning the condition of his shoes, appellant stated he had probably walked through dirt or a field. 2

The officer decided to transport the group to the home of Mr. Bennett for a possible identification. Before placing the men in the police vehicle, the officer conducted a "pat down" search which produced from one of appellant's companions a ring and a silver dime of numismatic value. The complainant identified the hat, ring and silver dime as being items taken from his house. The men were then placed under arrest and charged with burglary and theft by unlawful taking.

Page 977

[498 Pa. 669] After a denial of the pre-trial suppression motion, appellant waived trial by jury and proceeded to trial on the basis of the evidence admitted at the suppression proceeding. The defendant rested without offering a defense and was found guilty as charged. Subsequent to the disposition of post-verdict motions adverse to appellant, a sentence of a term of imprisonment of four to twenty-three months was imposed. The conviction was affirmed by the Superior Court sitting en banc by a four to two vote. 3 We granted review.

I. Sufficiency of the Evidence.

This claim of appellant is quickly disposed of on the instant record. The test for sufficiency of the evidence is whether accepting as true all of the evidence reviewed in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Ransome, 485 Pa. 490, 402 A.2d 1379 (1979); Commonwealth v. Sadusky, 484 Pa. 388, 399 A.2d 347 (1979) citing Commonwealth v. Sullivan, 472 Pa. 129, 149-150, 371 A.2d 468, 478 (1977). See also, Commonwealth v. Horton, 485 Pa. 115, 401 A.2d 320 (1979); Commonwealth v. Toney, 474 Pa. 243, 378 A.2d 310 (1977); Commonwealth v. Rose, 463 Pa. 264, 344 A.2d 824 (1975). Moreover, a claim of insufficiency of the evidence will not be assessed on a diminished record, but rather on the evidence actually presented to the finder of fact rendering the questioned verdict. Commonwealth v. Cohen, 489 Pa. 167, 413 A.2d 1066 (1980); Commonwealth v. Kuebler, 484 Pa. 358, 361 n.*, 399 A.2d 116, 117 n.* (1979); Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A.2d 884, 886 (1965).

Here there is little question that the Commonwealth produced ample evidence for a finder of fact to conclude that [498 Pa. 670] the premises at 748 S. 51st Street had been burglarized and that there was a theft of its contents. Appellant does not challenge the proof of the fact of the burglary or the theft but rather focuses upon the evidence offered to establish his participation. Appellant characterizes the evidence in this regard as merely establishing "appellant's presence with two men, one of whom who possessed stolen property, not visible to appellant, which had been taken in a burglary committed sometime earlier that day, and appellant's possession of a hat which was similar to one taken in that burglary."

Appellant takes too narrow a view of the Commonwealth's evidence presented to establish his guilt. At trial Mr. Bennett testified the hat as having been taken from a bureau drawer in his dining room. That the hat merely resembled a hat taken from the house during the burglary was an inference that the defense urged the fact finder to draw. However, the fact finder was obviously free to accept Mr. Bennett's positive statement that the hat was in fact the one removed from the house. That one of appellant's companions also had on his person property definitely identified as being taken during the same burglary provides a basis for finding the two men as being co-participants. It unquestionably refutes the defense's charge that the evidence did not establish any relationship between him and the other two males he was standing with when approached by Officer McCoy. The condition of the shoes of the trio was consistent with having traversed the area between the burglarized home and the vacant property.

The fact that the evidence establishing a defendant's participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence. Commonwealth v. Sullivan, supra; Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976); Commonwealth v. Cox, 466 Pa. 582, 353 A.2d 844 (1976); Commonwealth v. Petrisko, 442 Pa. 575, 580, 275 A.2d 46, 49 (1971). See also, Commonwealth

Page 978

v. Tinsley, 465 Pa. 329, 350 A.2d 791 (1976); Commonwealth v. McIntyre, [498 Pa. 671] 451 Pa. 42, 47, 301 A.2d 832, 834 (1973). We are satisfied that the possession of the fruits of the burglary found on the appellant and his companions within a block and a half from the situs of the crime, with his clothing and that of his companions in a condition compatible with a recent visit to the scene of the crime, within a half an hour of the discovery of the crime supports a finding of guilt. Thus the sufficiency of the evidence claim may properly be dismissed as being without substance.

II. Legality of the Arrest.

Both the Commonwealth and the majority of the Superior Court agreed that the police did not have probable cause for the arrest of appellant and his companions until the owner of the premises identified the hat in appellant's possession and the items taken from his companions as having been taken from the burglarized premises. In this jurisdiction it is clear that one may not be arrested without probable cause. Commonwealth v. Bartlett, 486 Pa. 396, 406 A.2d 340 (1979); Commonwealth v. Stokes, 480 Pa. 38, 389 A.2d 74 (1978); Commonwealth v. Dickerson, 468 Pa. 599, 364 A.2d 677 (1976); Commonwealth v. Farley, 468 Pa. 487, 364 A.2d 299 (1976); Commonwealth v. Culmer, 463 Pa. 189, 344 A.2d 487 (1975); Commonwealth v. Jackson, 459 Pa. 669, 331 A.2d 189 (1975); Commonwealth v. Rush, 459 Pa. 23, 326 A.2d 340 (1974). We have defined an arrest as any act that indicates an intention to take the person into custody and subjects him to the actual control and will of the person making the arrest. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). See also, Commonwealth v. Nelson, 488 Pa. 148, 411 A.2d 740 (1980) citing Steding v. Commonwealth, 480 Pa. 485, 391 A.2d 989 (1978) and Commonwealth v. Brown, 230 Pa. Superior Ct. 214, 326 A.2d 906 (1974); Commonwealth v. Silo, 480 Pa. 15, 389 A.2d 62 (1978), certiorari denied Silo v. Pennsylvania, 439 U.S. 1132, 99 S.Ct. 1053, 59 L.Ed.2d 94, rehearing denied 440 U.S. 969, 99 S.Ct. 1522, 59 L.Ed.2d 785 (1978); Commonwealth v. Richards, 458 Pa. 455, 327 A.2d 63 (1974).

[498 Pa. 672] The question raised is whether placing appellant in a police vehicle, after a "pat down" search and...

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150 practice notes
  • Com. v. Revere
    • United States
    • United States State Supreme Court of Pennsylvania
    • December 28, 2005
    ...Page 696 Court's recognition of an exigent circumstances exception to the probable cause analysis employed in Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982). For the reasons that follow, we hold that exigent circumstances may justify police transporting a suspect a short distance......
  • Com. v. Melson
    • United States
    • Superior Court of Pennsylvania
    • April 18, 1989
    ...that he had been taken into custody and subjected to the will and control of the person making an arrest. See Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), cert. denied 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 The mere fact that an individual is subjected to a stop and a p......
  • Glass v. City of Philadelphia, No. CIV.A. 99-6320.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • October 10, 2006
    ...Davis, 394 U.S. at 726, 89 S.Ct. 1394. 64. Under Pennsylvania law, the same standard is applied. See Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975, 980 (1982) (holding that a transportation of suspects from place of initial investigatory stop without exigent circumstances to support th......
  • Bristow v. Clevenger, No. CIV. 1:CV-98-2010.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • January 19, 2000
    ...or lengthy search or detention'") (quoting United States v. Espinosa, 782 F.2d 888, 891 (10th Cir.1986)); Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975, 977 (1982) ("We have defined an arrest as any act that indicates an intention to take the person into custody and subjects ......
  • Request a trial to view additional results
150 cases
  • Com. v. Revere
    • United States
    • United States State Supreme Court of Pennsylvania
    • December 28, 2005
    ...Page 696 Court's recognition of an exigent circumstances exception to the probable cause analysis employed in Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982). For the reasons that follow, we hold that exigent circumstances may justify police transporting a suspect a short distance......
  • Com. v. Melson
    • United States
    • Superior Court of Pennsylvania
    • April 18, 1989
    ...that he had been taken into custody and subjected to the will and control of the person making an arrest. See Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), cert. denied 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 The mere fact that an individual is subjected to a stop and a p......
  • Glass v. City of Philadelphia, No. CIV.A. 99-6320.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • October 10, 2006
    ...Amendment." Davis, 394 U.S. at 726, 89 S.Ct. 1394. 64. Under Pennsylvania law, the same standard is applied. See Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975, 980 (1982) (holding that a transportation of suspects from place of initial investigatory stop without exigent circumstances t......
  • Bristow v. Clevenger, No. CIV. 1:CV-98-2010.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • January 19, 2000
    ...or lengthy search or detention'") (quoting United States v. Espinosa, 782 F.2d 888, 891 (10th Cir.1986)); Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975, 977 (1982) ("We have defined an arrest as any act that indicates an intention to take the person into custody and subjects him to the......
  • Request a trial to view additional results

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