Summary
In Commonwealth v. Tatro, 223 Pa. Super. 278, 297 A.2d 139 (1972), burglary tools seen as a result of a lawful stop of a car were held admissible.
Summary of this case from Commonwealth v. AdamsOpinion
June 16, 1972.
November 16, 1972.
Criminal Law — Search and seizure — Stopping vehicles to determine whether registration is valid and whether operator has a valid license — Act of April 29, 1959, P.L. 58, § 1221 — Objects in plain sight of police officer.
1. In this case, in which it appeared that a police officer observed an automobile occupied by defendants and two others moving in a suspicious circular pattern through a residential area; that the officer stopped the vehicle and requested the driver to produce his operator's license and owner's registration; that the officer saw one of the defendants attempting to push a box containing a walkie-talkie under the front seat and another officer approaching the vehicle from the rear saw a number of items being thrown from the car which he then retrieved, it was Held on appeal from a conviction on charges of conspiracy and possession of burglary tools that the contention of defendants, that the police had no right to stop the vehicle in which they had been passengers and that they therefore had no right to observe the equipment in the vehicle or retrieve the abandoned articles, so that it was error for the court below to refuse to suppress the evidence so obtained, was without merit.
2. The police have the right to stop vehicles to determine whether the registration is valid and whether the operator has a valid license: Act of April 29, 1959, P.L. 58, § 1221.
3. Where objects unexpectedly fall into the sight of a police officer who had a right to be where he could make the observation, they are subject to seizure and subsequent introduction into evidence.
Criminal Law — Practice — Joinder or severance of trials involving the same defendant.
4. Trial courts have wide discretion in the trial of cases before them and as to whether to join or sever trials which involve the same defendant.
5. In this case, it was Held that the consolidation of charges of burglary and larceny for trial with other charges occurring one day apart where the indictments involved the same defendants and they appeared to bear a close relationship to one another did not constitute an abuse of discretion.
Criminal Law — Evidence — Sufficiency — Motion in arrest of judgment — Burglary-larceny charge.
6. In passing upon a motion in arrest of judgment following a conviction, the sufficiency of the evidence must be evaluated upon the entire trial record, and the evidence must be read in the light most favorable to the Commonwealth which is entitled to all reasonable inferences arising therefrom.
7. In this case, in which it appeared that the only evidence to connect defendants to a burglary which occurred twenty-four hours prior to their arrest was the finding of a screwdriver at the time of the search of the vehicle, which had been identified as one used in the earlier burglary, and there was no evidence as to who possessed it or used it previously, it was Held that the court below properly arrested judgment on the burglary-larceny charge.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and PACKEL, JJ.
Appeals, Nos. 153, 154 and 181, Oct. T., 1972, from judgment and order of Court of Common Pleas of Montgomery County, Sept. T., 1969, No. 307, and Nov. T., 1969, No. 161, in case of Commonwealth of Pennsylvania v. Thomas Robert Tatro and James McKenzie. Judgment of sentence affirmed; order in arrest of judgment affirmed.
Indictments charging defendants with conspiracy to commit burglary, unlawful possession of burglary tools, burglary and larceny. Before LOWE, J.
Verdicts of guilty. Motion by defendants in arrest of judgment granted as to charge of burglary and judgment of sentence entered. Commonwealth and defendants, respectively, appealed.
Edward F. Kane, with him Bean, DeAngelis, Kaufman Giangiulio, for defendant.
Daniel L. Quinlan, for defendant.
Stewart J. Greenleaf, Assistant District Attorney, with him J. David Bean, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth.
SPAULDING and HOFFMAN, JJ., concurred in the result.
Argued: June 16, 1972.
These appeals are from the judgment of sentence by the defendant-appellants, Thomas R. Tatro and James McKenzie, by the Court of Common Pleas of Montgomery County after conviction of the charges of conspiracy and possession of burglary tools; and by the Commonwealth from the order of the said court arresting judgment on a burglary conviction.
The facts are as follows: On the evening of September 18, 1969, Officer James J. Callos of the Lower Merion Township Police Department observed a vehicle, occupied by four (4) white males traveling through the Penn Valley area, and as the vehicle was moving through a strictly residential area and driving in a circular pattern, the occupants appeared to be examining the homes in the vicinity.
The officer then stopped the vehicle and requested the operator Edward Loney, to produce his operator's license and owner's registration. The defendant McKenzie was seated in the rear of the car, on the left, the officer was able to observe a walkie-talkie in an open box adjacent to where McKenzie was sitting and who was engaged in trying to push the box under the front seat.
Officer Harner of the same police department approached the vehicle from the rear and observed a number of items being thrown from the vehicle. He retrieved flashlights, gloves, a radio antenna and a screwdriver. The defendants together with the other two occupants were arrested and charged with conspiracy to commit burglary and possession of burglary tools.
It was then determined through laboratory tests that the screwdriver taken from the car was used in a burglary that took place on September 17, 1969, in the same area. As a result of this, the defendants were also charged with burglary and larceny and were tried for these crimes at the same time.
The jury convicted the defendants on all counts. The defendants filed motions for a new trial and in arrest of judgment. The post-trial motions growing out of the September 18th circumstances were denied. But the court below granted the motion in arrest of judgment on the burglary and larceny charge.
The defendants contend that the police had no right to stop the vehicle in which they were passengers and, therefore, had no right to observe the equipment in the vehicle or retrieve the articles abandoned so that their petition to suppress all the evidence should have been granted. We cannot agree. The police did not stop the car for the purpose of searching it or its occupants. They do have the right to stop vehicles to determine whether the registration is valid and whether the operator had a valid license. Act of April 29, 1959, P.L. 58, § 1221, as amended, 75 P.S. 1221 (a) and (b).
The items of burglary equipment taken from the car on the side where Tatro was sitting were abandoned. Abel v. U.S., 362 U.S. 217, 80 S. Ct. 683 (1960). And all other items introduced were in plain view and not the fruits of a search. McKenzie was exercising control over the box of equipment in the rear seat and a walkie-talkie was next to Tatro in the front seat. Commonwealth v. Brayboy, 209 Pa. Super. 10, 223 A.2d 878 (1966). None of the above came within the restricted purview of the search and seizure cases. As the Court below said: "It is critical to a just evaluation of the search and seizure under consideration that care be taken to avoid confusion between it and similar but factually distinguishable situations. This is not the case wherein the search and seizure is founded upon mere suspicion or surmise as in Commonwealth v. One 1958 Plymouth Sedan, supra, or where the authority to search was predicated upon an ordinary traffic violation without more, Commonwealth v. Dussell, 439 Pa. 392 (1970), Commonwealth v. Bryner, 218 Pa. Super. 316 (1971), or where the search was bottomed upon a traffic violation and a mere suspicion of suspect circumstances, Commonwealth v. Lewis, 442 Pa. 98, 101 (1971). Here the initial stopping was pursuant to the authority of The Vehicle Code, and the search incident to a concurrent on sight arrest founded upon direct sightings of the police officers which furnished more than ample reasonable and probable cause."
In Terry v. Ohio, 392 U.S. 1, 22, 88 S. Ct. 1868, 1880 (1968), Mr. Chief Justice WARREN said: "One general interest (of the government) is of course that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest."
It is also contended that the court erred in permitting the trial of the burglary and larceny count with the other charges as one occurred the day before the other. Trial courts have wide discretion in the trial of cases before them and as to whether to join or sever trials which involve the same defendant. The burglary and larceny indictments involved the same defendants and they appeared to bear a close relationship to one another. The consolidation did not amount to a manifest abuse of discretion.
In Commonwealth v. One 1958 Plymouth Sedan, 418 Pa. 457, 211 A.2d 536 (1965), on which the defendants rely is inapposite. The factual situation in that case concerned the right to search and seize an automobile suspected of transporting contraband. While the instant case involves only the stopping of a vehicle for routine purposes enumerated in the act and after the stopping under the act the plain view doctrine resulted in the reasonable and probable cause to make the arrest.
As the court below put it: "In logical sequence, defendants next challenge the search of the vehicle in which they were riding and the seizure of various evidentiary items therefrom. At the very threshold of these considerations, the Court must evaluate the applicability of the plain view doctrine: objects unexpectedly falling into the sight of a police officer who had a right to be where he could make the observation are subject to seizure and subsequent introduction into evidence. Stanley v. Georgia, 394 U.S. 557 (1969); Harris v. United States, 390 U.S. 234 (1968), Commonwealth v. Brayboy, 209 Pa. Super. 10 (1966)." See also, Collidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971).
The Commonwealth appealed from the order of the court below arresting judgment on the burglary-larceny charge. In passing upon a motion in arrest of judgment following conviction the sufficiency order must be evaluated upon the entire trial record and the evidence must be read in the light most favorable to the Commonwealth and the Commonwealth is entitled to all reasonable inferences arising therefrom. Commonwealth v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965).
The only evidence to connect appellants to the burglary-larceny which occurred twenty-four (24) hours prior to their arrest was the screwdriver. Who possessed it or used it previously is pure conjecture and the court below properly arrested judgment.
The evidence, when considered in its entirety, substantiates the conspiracy and possession charges. The gloves, flashlights, walkie-talkie, screwdriver, etc. together constitute the tools of a modern burglar and in this case were intended to be used for that purpose. The possession and control of these items has already been discussed.
Judgment of sentence is affirmed. Order in arrest of judgment is affirmed.
SPAULDING and HOFFMAN, JJ., concur in the result.