Commonwealth v. Lovette

413 A.2d 390, 271 Pa. Super. 250
CourtSuperior Court of Pennsylvania
DecidedDecember 18, 1979
Docket2366
StatusPublished
Cited by23 cases

This text of 413 A.2d 390 (Commonwealth v. Lovette) 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. Lovette, 413 A.2d 390, 271 Pa. Super. 250 (Pa. Ct. App. 1979).

Opinions

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 [253]*253observed 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 [254]*254transporting 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, 122 (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 [255]*255burglary 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,

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Commonwealth v. Lovette
413 A.2d 390 (Superior Court of Pennsylvania, 1979)

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Bluebook (online)
413 A.2d 390, 271 Pa. Super. 250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-lovette-pasuperct-1979.