Commonwealth v. Dever

• Citation: 364 A.2d 463,243 Pa.Super. 87
• Parties: COMMONWEALTH of Pennsylvania v. Joseph DEVER, Appellant.
• Decision Date: 27 September 1976
• Court: Superior Court of Pennsylvania

364 A.2d 463

243 Pa.Super. 87

COMMONWEALTH of Pennsylvania v. Joseph DEVER, Appellant.

Superior Court of Pennsylvania.

September 27, 1976.

Calvin S. Drayer, Jr., Asst. Public Defender Norristown, for appellant.

Milton O. Moss, Dist. Atty., William T. Nicholas, 1st Asst. Dist Atty., Stewart J. Greenleaf, Asst. Dist. Atty., Chief Appeals Div., Norristown, for appellee.

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

JACOBS, Judge:

This is an appeal from the conviction of Joseph Dever, appellant, for violating the Uniform Firearms Act. Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 6106 (1973). Several arguments are made in appellant's submitted brief, no oral argument having been made, which are without merit. ^[1] Appellant's claim of ineffective assistance of counsel, however, requires that the case be remanded for an evidentiary hearing.

On July 14, 1974, appellant and another person knocked on the door of a motel room that was at the time being searched by the police for narcotics. One of the officers, all of whom were in plain clothes, opened the door and stated 'Police, come in.' The officer further testified that appellant then 'picked up his arms and shoved me slightly. And then he took several steps backwards. And it appeared to me as if he were trying to run or prepare to run to get away or flee.' The officer pursued appellant and while appellant was being brought under control, a pistol dropped to the floor.

Appellant's trial for violation of the Uniform Firearms Act was scheduled for January 22, 1975. On January 6, 1975, however, the Commonwealth filed an application for an extension for the commencement of trial under Pa.R.Crim.P. 1100(c). A hearing on the application was to be held on January 31, 1975. On January 13, 1975, appellant moved to suppress the pistol but the motion was dismissed as being untimely filed. When appellant's case was called for trial on January 27, 1975, appellant's counsel agreed to waive all objections to the Commonwealth's application to extend for the Commonwealth's agreement to overlook the timeliness objection to appellant's motion to suppress. A suppression hearing was then held but again appellant's motion was denied. Trial commenced the next day and appellant was found guilty as charged by a jury. After post-verdict motions were filed and denied and sentence was imposed, this appeal was taken.

The first issue raised is whether the evidence was sufficient to support the verdict. At trial, each officer who was at the scene testified that the pistol was not his and one officer testified that he saw the pistol fall from the waist area of appellant. Viewing this evidence in the light most favorable to the Commonwealth, the verdict winner, we are convinced that the evidence was sufficient to support the verdict. See Commonwealth v. DiSilvio, 232 Pa.Super. 386, 335 A.2d 785 (1975).

Appellant next contends that Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975) required the Commonwealth as part of its burden of proof to establish that appellant did not have a license for the pistol. Commonwealth v. McNeil, supra, which was filed on May 13, 1975, is not applicable, however, to the present case which was tried several months earlier. Commonwealth v. Williams, 237 Pa.Super. 91, 346 A.2d 308 (1975).

The third argument raised in appellant's brief is that the seizure of the pistol by the police was improper. Although the police in this case did not have probable cause to arrest appellant, it would have been absurd for them to fail to respond to appellant's actions of shoving the officer and then trying to flee. 'The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry (v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)) recognizes that it may be the essence of good police work to adopt an intermediate response.' Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). Here, appellant arrived at the scene of a suspected drug operation. After the police identified themselves appellant shoved one of them and attempted to flee. Under these circumstances, the police were justified in believing that criminal activity was afoot and their detention of appellant as well as the protective search of him was clearly reasonable.

Moreover, we do not view the force used by the police in bringing appellant under control as excessive. When a suspect who the police are justified in detaining has demonstrated a propensity for resistance as well as an intention to flee, physical force may reasonably be used by the police to enable them to detain the suspect. Otherwise, the police would be powerless to frisk a suspect who decided to resist the officer or leave the area of investigation.

The cases relied on by appellant are distinguishable on their facts. In Commonwealth v. Reece, 437 Pa. 422, 263 A.2d 463 (1970) the only justification for defendant's arrest and search was his arrival at the scene of a 'pot party.' As noted by the Supreme Court, 'there was nothing about Reece's conduct or demeanor to warrant a reasonably prudent man in apprehending danger.' Id. at 428--29, 263 A.2d at 466. The facts of Reece demonstrate that the defendant there never pushed any of the police nor did he try to flee from them. Similarly, in Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973) there were insufficient facts and circumstances to justify the arrest of the defendant. There, the only reason the police arrested defendant was because he ran away when they confronted him on the street. In Jeffries, the defendant was not at the scene of a crime, nor did he push or shove any of the officers.

In the instant case, we have many more circumstances than were present in Reece or Jeffries. We have the arrival of appellant at the scene of a suspected drug operation, we have appellant shoving one of the officers after he had identified himself, and we have appellant then attempting to leave. We find that the police acted properly in detaining appellant for investigation. The pistol that was discovered as the result of appellant's detention was correctly not suppressed by the court below.

Appellant's final argument is that trial counsel was ineffective for failing to object to the Commonwealth's application for an extension of time to commence trial. This issue is cognizable now on direct appeal since appellant counsel did not represent appellant at trial. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). If there was a reasonable basis for counsel's lack of objection, Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), or if the petition for extension would most likely have prevailed in spite of objection, ^[2] Cf. Commonwealth v. Hill, 231 Pa.Super. 371, 331 A.2d 777 (1974), we would not find counsel ineffective for failing to contest the petition. However, the record in the present case does not reveal whether an objection to the extension would have been successful. Accordingly, we must remand this case to the lower court for an evidentiary hearing. If it appears that trial counsel's decision not to challenge the application for an extension was reasonable and not based on his prior neglect or if it is determined that any such challenge would most likely have been to no avail, then counsel should not be found ineffective for failing to contest the Commonwealth's application to extend the trial date. On the other hand, if it is found that trial counsel's reason for failing to object to the extension was based on his prior carelessness in not timely filing the motion to suppress and a challenge to the extension would have been successful in dismissing the charges against appellant because of the violation of Pa.R.Crim.P. 1100, then the lower court should find counsel ineffective and dismiss the charges against appellant and discharge him pursuant to Pa.R.Crim.P. 1100(f). ^[3]

Remanded for proceedings consistent with this opinion.

HOFFMAN, J files a concurring and dissenting opinion in which CERCONE and SPAETH, JJ., join.

HOFFMAN, Judge (concurring and dissenting):

Appellant challenges his conviction for violating § 6106 of the Uniform Firearms Act ^[1] on several grounds: that the evidence was insufficient to prove possession of the pistol; that the Commonwealth failed to meet its burden of proving absence of license; that the lower court erred in admitting irrelevant evidence, that the pistol should have been suppressed as the 'fruit' of his illegal arrest; and that his trial counsel was ineffective.

Pursuant to a search warrant, Montgomery County and Upper Merion police conducted a search of Room 258 in Stouffer's Motor Inn, King of Prussia, on July 14, 1974. The police believed that the occupant of the room, Rocco Auriemma, a known drug dealer, was in possession of narcotics. While the police were searching the room, the appellant, Joseph Dever, and Kenneth Tuzzi knocked on the door. The officers, all in plain clothes, went to the door; one officer, Officer Ferlick, opened it and stated 'Police, come in.' Officer Ferlick testified that the appellant then 'picked up his arms and shoved me slightly. And then he took several steps backwards. And it appeared to me as if he were trying to run or prepare to run to get away or flee.' The police immediately pursued and during the ensuing scuffle, a loaded .45 caliber automatic pistol dropped from the appellant's waist area to the floor.

The appellant was indicted for a violation of § 6106 of the Uniform Firearms Act on October 29, 1974, and...