Appeal from judgment of Court of Oyer and Terminer and Quarter Sessions of the Peace of Philadelphia County, Dec. T., 1964, No. 5, in case of Commonwealth of Pennsylvania v. Henry L. Anderson.
Lenard H. Sigal, for appellant.
Gordon Gelfond, Assistant District Attorney, with him Benjamin H. Levintow and Joseph M. Smith, Assistant District Attorneys, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Watkins, J. Hoffman, J., concurs in the result.
[ 208 Pa. Super. Page 324]
This is an appeal from the judgment and sentence of the Court of Oyer and Terminer, Quarter Sessions of the Peace and Jail Delivery, of Philadelphia County. The appellant-defendant, Henry L. Anderson, was charged with the felonious possession of narcotic drugs. He waived his right to a jury trial and after entering his plea of not guilty, was tried before the Honorable George W. Griffith, specially presiding. He was adjudged guilty; motions in arrest of judgment and for a new trial were denied; and he was sentenced to a term of not less than two and one-half years nor more than ten years in the State Correctional Institution at Philadelphia.
[ 208 Pa. Super. Page 325]
Prior to trial, he filed a motion to suppress evidence on the ground of unlawful arrest, search and seizure. The matter was heard by the Hon. Charles L. Guerin, who, after hearing the testimony, dismissed the motion. The same motion was renewed and substantially the same testimony was heard by the trial judge and the motion to suppress was denied.
The question on appeal is whether a new trial should be granted because of the denial of the motion to suppress and the admission of alleged illegally obtained evidence in violation of the appellant's constitutional rights. Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684 (1961).
The facts are: That at or about 2:05 A.M., on November 16, 1964, two cruising police officers saw an automobile being operated erratically and with its lights at high beam. They stopped the car to determine the condition of the driver. The officers, after talking to the appellant, found that although he had been drinking, in their opinion, he was not intoxicated. One of the officers recognized him as a known narcotics violator and as they were examining his owner's and operator's cards and talking to him, with the use of a flashlight, they noticed a cylindrical shaped object wrapped in brown paper protruding from under the front seat. There was a passenger in the car who was alleged to be a garage attendant who was to have parked the appellant's car after he arrived home. The appellant did not testify either at the trial or at the hearing to suppress the evidence. Neither did the passenger.
The only testimony as to what took place that early morning was given by the two police officers. They testified that they asked him to accompany them to the District Police station for investigation. They testified that he was not placed under arrest at that time nor did they seize the package involved. The appellant
[ 208 Pa. Super. Page 326]
consented to their request and drove his automobile to the police station and locked it before accompanying the officers into the station. After about "five to ten minutes" the appellant was asked and consented to a search of his car and assisted the officers in making the search. They found nothing by the search but the package which they had seen at the time the car was stopped. This package ...