Appeal from judgment of Court of Quarter Sessions of Montgomery County, Nov. T., 1964, No. 421, in case of Commonwealth of Pennsylvania v. Robert M. Pincavitch.
Joseph F. Keener, Jr., with him Henderson, Wetherill & O'Hey, for appellant.
Richard A. Devlin, Assistant District Attorney, with him George W. Tracy, Assistant District Attorney, and Richard S. Lowe, District Attorney, for Commonwealth, appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Montgomery, J. Ervin, P. J., and Wright, J., would affirm on the opinion of the court below.
[ 206 Pa. Super. Page 541]
This is an appeal from a judgment of sentence following a verdict of guilty by a jury on charges of burglary and larceny, and the denial of motions in arrest of judgment and for a new trial.
The basis for this appeal, and the motions above recited, concerns the circumstances of appellant's arrest, which he contends was unlawful, as well as the search of his person following his arrest and the seizure of articles, all of which were offered in evidence after his pretrial application for suppression had been refused.
Under Pa. Crim. R. 2001(e)(1), the factual averments of an application for the suppression of evidence which are not specifically denied by answer are to be taken as true. Since no answer was filed in the present case the issue before us may be decided on the basis of the application which leaves no material issue of fact in dispute requiring other evidence.
The application recited that the defendant therein, Robert M. Pincavitch, was held on a charge of burglary, larceny, and receiving stolen goods in connection with a burglary at the Brown Derby Bar in Conshohocken,
[ 206 Pa. Super. Page 542]
Pennsylvania, on January 2, 1965, following an arrest at 3:30 a.m. on that day on a charge of violating the Act of June 24, 1939, P. L. 872, § 675.1, as amended, 18 P.S. § 4675.1, a summary offense*fn1 prohibiting the purchase, consumption, possession or transportation of alcohol, liquor or malt or brewed beverages by a minor. The arrest on this summary offense without seeing it committed was made without a warrant and only because the arresting officer smelled the odor of alcohol on the breath of the defendant. After his arrest the defendant was searched and $36 in bills and change were removed from his possession, his clothes were taken from him and particles of glass were procured from them.
The application to suppress was dismissed without an opinion and subsequently the evidence was admitted at the trial. Its admission was justified by the trial judge, Hon. Robert W. Honeyman, on the basis that the search of defendant was legal as incidental to his lawful arrest. He found the arrest to be legal, although made without a warrant, because defendant's actions constituted a breach of the peace committed in the presence of the arresting officer, or such an act for which a borough policeman may make an arrest under Section 1125 of The Borough Code of May 14, 1927, P. L. 519, as amended, 53 P.S. § 46125. This section provides that such a policeman may arrest persons for "breach of the peace, vagrancy, riotous or disorderly conduct or drunkenness, or ...