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COMMONWEALTH v. ONE 1955 BUICK SEDAN (MARCHESE). (09/13/62)

September 13, 1962

COMMONWEALTH, APPELLANT,
v.
ONE 1955 BUICK SEDAN (MARCHESE).



Appeals, Nos. 251 and 252, Oct. T., 1962, from orders of Quarter Sessions Court of Philadelphia County, Feb. T., 1962, Nos. 5 and 6, in cases of Commonwealth of Pennsylvania v. One 1955 Buick Sedan et al., and Same v. One 1957 Chevrolet Sedan et al. Orders reversed.

COUNSEL

Russell C. Wismer, Special Assistant Attorney General, with him George G. Lindsay, Assistant Attorney General, and David Stahl, Attorney General, for Pennsylvania Liquor Control Board, appellant.

D. T. Spagnoletti, for appellees.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Ervin

[ 199 Pa. Super. Page 13]

OPINION BY ERVIN, J.

These are two appeals by the Commonwealth from orders of the court below dismissing petitions for the

[ 199 Pa. Super. Page 14]

    forfeiture of a 1955 Buick sedan and a 1957 Chevrolet sedan for the transportation of whiskey in Pennsylvania contrary to § 491(2) of the Liquor Code, 47 PS § 4-491(2). Motions to suppress the evidence were made by counsel for the operators of the automobiles on the ground that the evidence was secured without a warrant and in violation of the fourth amendment to the Constitution of the United States. Both cases were heard at the same time by the court below and were argued together before us.

At 10:30 p.m. on December 13, 1961 Officer Bethel and Officer Peterson, of the Philadelphia Police Force, observed a 1955 Buick sedan bearing New Jersey license tags traveling east on Powelton Avenue from 40th Street in the City of Philadelphia. There was no light over the license plate and the officers stopped the car and asked the operator, Robert Marchese, to produce his owner's card and operator's license. He produced an owner's card but no operator's license and then asked the officers why he had been stopped. Marchese got out of the car and went to the rear with the officers, at which time they pointed out the motor vehicle violation. Officer Bethel further testified as follows: "... at which time I noticed the car was sitting rather low from the ground. I stated to Mr. Marchese what was he carrying in his trunk. He became very nervous and fidgety and stated he is carrying whiskey, at which time he gave me the keys and I opened the trunk of his car. In the Buick there were seven full cases of Seagrams V.O. without the Pennsylvania State Store tax."

The officer testified that the Buick car was preceded by a black 1957 Chevrolet sedan bearing New Jersey license tags, and when the officers stopped the Buick the Chevrolet also stopped. This car was operated by one Horace Marchese who came back to the officers and asked them why they stopped his

[ 199 Pa. Super. Page 15]

    brother, "at which time we told him that his brother did not have any driver's license, plus there wasn't a light over his tag; further that he was carrying whiskey. At that point Horace Marchese stated that he is also carrying whiskey too." The officers then searched the Chevrolet and found in the trunk seven cases ...


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