Commonwealth v. Zappacosta
Commonwealth v. Zappacosta
Opinion of the Court
Appellant was found guilty after jury trial of conspiracy,
On June 10, 1976, during daylight hours, 13 FBI agents from the FBI office in Philadelphia, acting under the direction of Supervising Agent Richard Schivein and as a part of a task force investigating a large scale interstate burglary ring, followed appellant and three other persons
At approximately 1:50 p. m., a resident of Spring Valley Road returned to her home and saw a Chevrolet
At a point just prior to reentry onto the Pennsylvania Turnpike, Supervising Agent Schivein gave his agents orders to stop both cars and make arrests. This was done, and local and state police were notified. The stopping and arrest occurred at 2:15 p. m.
The arrests were without warrants and made by the agents. The record is unclear as to timing, but sometime around 1:00 p. m., the Pennsylvania State Police had been alerted as to the agents’ activities in the Lancaster area, and at approximately 2:28 p. m.,
■ The state police secured search warrants for the cars. The bag in the Pontiac contained numerous tools clearly of special use in burglaries. Included among those items found were a lock pick, a barrel pick, a key ring with 29 keys, a pry
Trial counsel for appellant filed boiler-plate post-trial motions, later supplemented, which were denied, and judgment of sentence was imposed.
A pre-trial application was made for suppression of evidence. It is set forth as follows:
1. Applicant stands charged with burglary, theft, conspiracy, and possessing instruments of crime.
2. Applicant was arrested in June, 1976, by police officers acting without a warrant.
3. At the time of arrest, applicant and another were traveling lawfully in a private automobile on a public highway in Lancaster County. The arresting officers had no probable cause to arrest applicant or his companion.
4. At or after the arrest, the automobile in which applicant had been travelling was searched by the arresting officers, and certain personal property was seized therefrom. Applicant believes the Commonwealth intends to offer said property in evidence at the trial of these cases.
5. Said property was obtained in violation of the rights guaranteed your Applicant by the Fourth and Fourteenth Amendments to the Constitution of the United States, Article One, Section 8 of the Constitution of Pennsylvania, the Pennsylvania Rules of Criminal Procedure, and the decisions of the several courts of the United States and the Commonwealth of Pennsylvania.
After hearing, suppression was denied.
The supplemental post-trial motions are as follows:
1. The court erred in dismissing defendant’s Application For Suppression of Evidence.
*76 2. The court erred in permitting the use at trial of evidence seized as a result of an illegal arrest without a warrant and without probable cause.
3. The court erred in permitting the use at trial of evidence seized from one 1974 Pontiac Grand Prix automobile seized pursuant to a warrant issued without probable cause.
On this appeal appellant poses this question:
“Where agents of the Federal Bureau of Investigation arrest a citizen for the crime of Burglary, have they not acted outside the scope of their legal authority as defined by Federal Law and is not the arrest, therefore, illegal?” (appellant’s brief at 1).
We do not find this question raised in the suppression motion. Further, the record of the suppression hearing itself clearly reveals that it was not presented in any manner. We are further of the opinion that the issue has not been properly presented in the post-trial motions. It is, therefore, waived. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).
Our review of the facts, as set forth above in greatly condensed form, clearly reveals that appellant’s questions concerning probable cause for a warrantless arrest, probable cause for the search warrants, and sufficiency of the evidence are so lacking in merit, that further discussion would border on the ridiculous. On the record before us, they are properly characterized as frivolous.
Appellant’s remaining contention, that 18 Pa.C.S. § 906 bars his conviction for both conspiracy and possessing instruments of crime since they arose out of the same criminal episode, is likewise without merit. It is clear that the burglary had been completed. Section 906 is designed to eliminate the conviction for more than one offense in the preparation to commit the objective. Model Penal Code § 1.07 (Proposed Official Draft, 1962). In Commonwealth v. Crocker, 256 Pa.Super. 63, 389 A.2d 601 (1978), the majority
Further, it seems clear that § 906 was intended to apply only to conspiracy, solicitation and attempt. The Crimes Code is undoubtedly based upon the Model Penal Code. As such, we observe in the accompanying commentary to the Model Penal Code section explaining the reason for the adoption of this section:
“The provision reflects the policy, frequently stated in these comments, of finding the evil of preparatory action in the danger that it may culminate in the substantive offense that is its object. Thus concerned, there is no warrant for culminating convictions of attempt, solicitation and conspiracy to commit the same offense.” Tent. Draft No. 10 at 180 (1962); see also S. Toll, Pa. Crimes Code Annot. at 270 (1974); 78 Dick.L.Rev. 159, 174 (1973). Judgment of sentence affirmed.
. 18 Pa.C.S. § 903.
. 18 Pa.C.S. § 907.
. 18 Pa.C.S. § 3502.
. Originally co-defendants, but prior to trial a severance was granted as to appellant.
. The FBI agents variously described it as yellow or gold. This witness described the car she saw as yellow.
. Subsequent road tests established a run time of approximately 8 minutes from the residence on Spring Valley Road to the parking area.
. Interestingly, Corporal Harish, in command of the detail, says he arrived at the scene of the arrest two minutes prior to the arrest. This is the only record indication of Pennsylvania police on the scene at the time of arrest.
Dissenting Opinion
dissenting:
I do not find this case distinguishable from Commonwealth v. Crocker, 256 Pa.Super. 63, 389 A.2d 601 (1978), as
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania v. Frank John ZAPPACOSTA A/K/A Frank J. Seib, Appellant
- Cited By
- 16 cases
- Status
- Published