Com. v. Lovette

• Decision Date: 18 December 1979
• Citation: 413 A.2d 390,271 Pa.Super. 250
• Parties: COMMONWEALTH of Pennsylvania v. Andre LOVETTE, Appellant.
• Court: Pennsylvania Superior Court

Page 390

413 A.2d 390

271 Pa.Super. 250

COMMONWEALTH of Pennsylvania v. Andre LOVETTE, Appellant.

Superior Court of Pennsylvania.

Submitted June 12, 1978.

Filed Aug. 24, 1979.

Petition for Allowance of Appeal Granted Dec. 18, 1979.

John W. Packel, Asst. Public Defender, Chief, Appeals Division, Leonard Sosnov, Philadelphia, for appellant.

Eric B. Henson, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before JACOBS, President Judge, and HOFFMAN, CERCONE, PRICE, VAN der VOORT, SPAETH and HESTER, JJ.

CERCONE, President Judge:

Appellant was convicted of burglary, theft and receiving stolen property and sentenced to four to twenty-three months imprisonment. Appellant seeks in the alternative that his judgment of sentence be arrested or that he be granted a new trial.

Appellant's first argument is that his arrest was constitutionally infirm because the police lacked probable cause to arrest him. Based upon the facts known at the time of arrest, we disagree. The arresting officer testified that on December 15, 1976 at 3:15 P.M. he received a radio dispatch to investigate males with stolen property in a deserted house. When the officers arrived they found stereos, Christmas gifts, clothing, pottery and other property stored in the vacant building. Across the driveway from the empty house, the police saw a broken rear door to a house which they discovered had been burglarized. The owner of the burglarized house later identified the goods found in the abandoned house as being stolen from his house. In transporting the stolen property to the deserted house, the burglars crossed a rain-soaked backyard and left muddy trails of footprints between the two houses. Shortly after the owner of the burglarized house arrived and identified his property, Officer McCoy began to patrol the area. Approximately one and one-half blocks from the crime, the officer observed three males standing on the corner with mud and dirt on their shoes. Appellant was holding a brown paper bag in his hand. The officer approached and requested identification, but the men did not identify themselves. When asked how his shoes had become muddy, appellant hesitated and replied that he had probably walked through dirt or a field in the course of a day. The officer thought the answer evasive. When Officer McCoy inquired into the contents of the paper bag, appellant showed the officer a camel-hair colored hat and responded that he just got it from a friend of his. Officer McCoy then decided to transport the trio one and one-half blocks to see if the burglary victim could identify the hat. Before placing the group in the police wagon, the officer conducted a "pat-down" search which revealed that one of appellant's companions possessed a ring and a silver dime with numismatic value. The complainant identified all three items as being taken from his house. All three men were then arrested and taken to the police station.

Appellant does not actively contend that the police officer was not permitted to stop and detain him briefly for identification. Nor does appellant assert that the police lacked probable cause to arrest him once the hat had been identified. Rather he contends that probable cause was lacking when the officer drove appellant to the burglarized house. Appellant identifies the officer's placing him in the patrol wagon as the time of the arrest, because he was subject to the control of the officer.

While we accept that appellant was required to accompany the officer for the one and one-half block trip, we disagree with his conclusion that in order to do so the police were required to have the same quantum of proof necessary to support a full-blown arrest. We are not faced with the aspects of such an arrest but, rather, with an identification procedure by which the officer could determine whether there was probable cause to arrest appellant and formally charge him with the criminal offenses. Instead of arresting appellant, the officer made an intermediate response by transporting appellant and the property a short distance for identification. Intermediate responses previously have been approved by the courts of this Commonwealth. Commonwealth v. LeSeuer, 252 Pa.Super. 498, 382 A.2d 127 (1977); Commonwealth v. Harper, 248 Pa.Super. 344, 375 A.2d 129 (1977), as guided by the Supreme Court decisions in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). The officer in this case was reluctant to let appellant free to leave as neither appellant nor his companions had identified themselves; and the hat, as evidence, could easily be destroyed or concealed. At the same time, the officer was reluctant to arrest appellant on the basis of the information known to him at this time. Rather than force the officer to choose between such opposite responses, this court sanctions the use of an intermediate response such as the one used in this case. See also Commonwealth v. Harper, supra. Obviously, once the hat had been identified, the officer had the requisite information to arrest appellant. Commonwealth v. Jones, 457 Pa. 423, 428, 322 A.2d 119 (1974). Accordingly, we find no error in the court's refusing to suppress evidence demonstrating that the hat had been stolen.

Secondly, appellant contests the sufficiency of the evidence to sustain his conviction of burglary, theft and receiving stolen property. The standard of appellate review is clear and uncontested. "(T)he test of sufficiency of (the) evidence is whether accepting as true all the evidence, together with all reasonable inferences therefrom upon which the (factfinder) could properly have based its verdict, such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt." Commonwealth v. Green, 464 Pa. 557, 565, 347 A.2d 682, 686 (1975); Commonwealth v. Bailey, 250 Pa.Super. 402, 378 A.2d 998 (1978). Appellant frames his argument that a conviction cannot stand "simply because he had a hat similar to one believed taken in a burglary, and was seen standing on a street corner next to a man (later) found to be in possession of items taken in a burglary of a nearby house." If this were the extent of the Commonwealth's evidence, appellant's argument would be much stronger. Additional circumstantial evidence was produced at trial which, taken along with permissible inferences from such evidence, supplied any missing link in the chain of the Commonwealth's proof. Appellant was in possession of a camel-hair colored hat which the complainant testified was alike in every detail to the one stolen from his house. Furthermore, the police were instructed to investigate males in a vacant house with property which was later identified as that stolen from complainant's house. Shortly thereafter, appellant and his two companions were found in possession of some of the stolen property only one and one-half blocks away from the burglarized house. Finally, the burglars had crossed a muddy backyard in perpetrating the crime and appellant's shoes were covered with mud.

Although a conviction cannot rest upon mere presence near the scene of the crime, Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973), or upon mere suspicion or conjecture, Commonwealth v. Bailey, 448 Pa. 224, 292 A.2d 345 (1974), the Commonwealth's burden may be met entirely by circumstantial evidence, Commonwealth v. Bailey, supra, and it is sufficient if the circumstances are consistent with criminal activity even though they might likewise be consistent with innocent behavior. Commonwealth v. Rambo, 250 Pa.Super. 314, 378 A.2d 953 (1977); Commonwealth v. Moore, 226 Pa.Super. 32, 311 A.2d 704 (1973). Given the surrounding facts and permissible inferences in this case, we conclude that a factfinder could find appellant guilty beyond a reasonable doubt of the crimes charged.

Appellant's final contention is that the trial court abused its discretion in denying appellant's motion for a new trial on the basis of after discovered evidence. The new "evidence" is the testimony of the complainant provided during the hearing on post-verdict motions, that he was mistaken in his trial testimony that the hat in appellant's possession was stolen from his house. The complainant explained that at trial he believed that his friend, Michael Leonard, had left the hat at his house, but later learned after trial that Leonard had found his hat. Apparently, the witness recanted his testimony at trial that the hat was in his house on the day of the robbery.

The trial judge who heard this modified testimony of the complainant believed it to be false and refused to grant a new trial. There were good reasons to reject it. First, it was hearsay based upon the alleged statements of Michael Leonard whose whereabouts were currently unknown, but believed to be Texas. Second, the testimony was only offered after appellant and his mother paid a visit to the complainant's home. Third, the complainant admitted having heard rumors in the neighborhood that appellant did not burglarize his home. Fourth, if the hat did not belong to Michael Leonard, and appellant's explanation that it belonged to a friend of his were true, why did not appellant's friend appear and testify? And, finally, at the hearing the complainant was argumentative with the assistant district attorney and, in general, conducted himself as an advocate for appellant's innocence than as a victim of a crime. These factors, when coupled with the strong and sure identification the complainant provided for the hat at trial, and his unshakeable certitude that the hat was in his house on the day of the burglary, provide ample basis for the court below to refuse to grant a new trial. Because "(r)ecanting testimony is (extremely) unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true." Commonwealth v. Coleman, 438 Pa. 373,...