Commonwealth v. Blakey

423 A.2d 402, 282 Pa. Super. 591, 1980 Pa. Super. LEXIS 3478
CourtSuperior Court of Pennsylvania
DecidedDecember 5, 1980
DocketNo. 2414
StatusPublished
Cited by2 cases

This text of 423 A.2d 402 (Commonwealth v. Blakey) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Blakey, 423 A.2d 402, 282 Pa. Super. 591, 1980 Pa. Super. LEXIS 3478 (Pa. Ct. App. 1980).

Opinions

CIRILLO, Judge:

The appellant, George Blakey, was tried before the Municipal Court of Philadelphia County on charges of carrying a firearm without a license and carrying firearms on public streets. Appellant was found guilty of both charges and was sentenced to one year probation and a fine plus court costs. Mr. Blakey, the appellant, then filed a Petition for a Writ of Certiorari with the Court of Common Pleas. Appellant’s request for a Writ of Certiorari was denied, and he appealed to this Court.

The facts of this case are as follows: Officer Anthony Morina was the sole witness for the Commonwealth. He testified that at approximately 7 p. m., December 27, 1978, informants told him that two men, who earlier in the evening had attempted a robbery at 1412 West Columbia Street, were presently in a house at 1745 North Sydenham Street. An informant described the alleged robbers as two Negro males, one short with medium complexion and wearing a blue jacket; the other, a taller male of dark complexion attired in a brown coat.

Shortly thereafter, Officer Morina left Columbia Avenue and quickly traversed the three-fourths of a block distance to 1745 North Sydenham Street. The Officer observed a Negro male standing next to a car parked in front of the house at that address. This male, George Blakey, the appellant, generally fit the description of that individual said to be wearing a blue jacket, one exception being his “small” height which in reality was 5'11". A taller, darker complexioned male who fit the description of the other man as reported by the informant, sat in the front passenger seat.

[594]*594In response to Officer Morina’s question, the appellant admitted owning the car. The male inside, John Clark, was ordered out and the Officer frisked both individuals. Three live thirty-eight rounds of ammunition were found in the appellant’s left pocket. Nothing was found on Mr. Clark’s person. Officer Morina then searched appellant’s car and found a .38 caliber revolver under the front passenger seat where Mr. Clark had been sitting.

The Commonwealth introduced a ballistics report which found the gun to be operable, and a certification by the Pennsylvania State Police that the appellant was not licensed to carry a firearm.

In challenging the “stop and frisk” tactics used by Officer Morina, the appellant claims that the Officer lacked probable cause to search him and that the resulting search of the car and finding of a weapon were fruits of an illegal arrest and should be excluded as illegal evidence.

In two landmark cases, Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the United States Supreme Court set down guidelines regarding material given to police by informants and the use of such information to establish probable cause for an arrest and/or a “stop and frisk.” The information provided must contain specific facts which when viewed by a reasonable person would lead them to view the suspect as likely to have committed a crime or about to do so. The Officer must also be able to relate the underlying circumstances which allowed him to view the individual’s statements as true. Aguilar, supra, at 114, 84 S.Ct. at 1513; and Spinelli, supra, at 416, 89 S.Ct. at 589.

Taking the first prong of the Aguilar-Spinelli test, one must use the description of the appellant as supplied by the informants and place it in the context of the situation which Officer Morina came upon to see if there was probable cause to stop and frisk at that moment. Also, it is fundamental that neither the evidence disclosed by the search nor [595]*595evidence uncovered after the initial frisk can be used to help establish probable cause at the time of the search. Commonwealth v. Hicks, 434 Pa. 153, 159, 253 A.2d 276, 280. Hence, the three bullets and the revolver play no part in establishing probable cause.

The information supplied by the informants concerning Mr. Blakey, the appellant, gave no indication of his age, his weight, nor his attire save a blue jacket. He was described as having a “mild complexion” and being “short and situated inside a house at 1745 North Sydenham Street.” Therefore, a close look at the description reveals only three things which might specifically distinguish the appellant from any other black male in the area-that he was short, wearing a blue jacket, and located inside a specific house.

Officer Morina approached the 1700 block of North Sydenham Street looking for a man who allegedly had attempted a robbery earlier in the evening several blocks away. He approached the appellant, questioned him, frisked him and searched his car. Yet two of the three specific facts supplied by the informants were missing. The appellant was not short, but instead by Officer Morina’s own admission was 5'11". The appellant was not a fugitive hiding in a house but was described by the Officer as calmly talking to others out on the street when he was confronted. Therefore, the only specific element supplied by the informants which the Officer saw to be true as applied to the appellant was that he was wearing a blue jacket. This was the only element in existence to separate him from other black males on the block.

Despite the obvious flaws in the informants’ description, the lower court places great emphasis on the fact that the other suspect described by the informants was taller than the appellant so as to make him appear short. However, when the Officer came upon the scene, the appellant was standing several feet away from the driver’s side of the car while John Clark was seated in the passenger seat of the car. This made a quick height comparison to account for a 5'11" man as “small” impossible. The lower court also saw as [596]*596important the officer’s own personal belief that no one else in that block at that time fit the description supplied to him. However, that does not mean that a 5'11" black man, wearing a blue jacket and talking with friends in the street adequately fits a description of a small black male in a specific home and wearing a blue jacket.

There are many Pennsylvania Supreme Court decisions which deny that probable cause existed for a stop and frisk when more facts or certain exigent circumstances were evident than in this case where probable cause was found upon a blue jacket.

In Commonwealth v. Sams, 465 Pa. 323, 350 A.2d 788 (1976), a police officer received information over his radio regarding a gang fight and a stabbing. While en route to the area, he was given more information “that Negro males were involved in the crime and that they were running south on Eleventh Street.” 465 Pa. at 325, 350 A.2d at 789. As the officer approached the scene, he saw the fifteen year old appellant running south only one and one-half blocks from the scene of the killing. The officer stopped the youth and took him to police headquarters where he ultimately confessed to the shooting. Despite the fact that the appellant was black, young, fleeing south and less than two blocks away from the scene of the crime, several minutes after it transpired, the court found a lack of probable cause.

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Related

Commonwealth v. Hook
459 A.2d 379 (Superior Court of Pennsylvania, 1983)

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Bluebook (online)
423 A.2d 402, 282 Pa. Super. 591, 1980 Pa. Super. LEXIS 3478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-blakey-pasuperct-1980.