Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, Sept. T., 1967, No. 382, in case of Commonwealth of Pennsylvania v. Harry Dasch.
Roger B. Reynolds, with him Roger B. Reynolds, Jr., for appellant.
Stewart J. Greenleaf, Assistant District Attorney, with him Paul W. Tressler, Assistant District Attorney, Parker H. Wilson, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Watkins, J.
[ 218 Pa. Super. Page 44]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Montgomery County, by the defendant-appellant, Harry Dasch, after conviction of having "in his possession and under his control certain dangerous or narcotic drugs"; from the denial of post-trial motions; and from the denial of a motion to suppress evidence.
The Abington Township Police Department, on information, began the surveillance of one Roger Whinney who was suspected of drug activity, in particular, marijuana. On September 26, 1967, at about 3:00 p.m., he was apprehended by the police in the parking lot of a Hot Shoppe restaurant. At the time, he was a passenger in a Plymouth convertible automobile operated by the defendant and owned by the defendant's mother, Mary Dasch. There was another unidentified passenger in the car. The police told Whinney that they had a warrant for his arrest, searched him and found nothing. They then took Whinney and the defendant to the police station.
At the police station, Whinney was thoroughly searched and again nothing was found on him. He was later discharged for lack of evidence. The police then searched the defendant and found nothing. According to the defendant, he was helping Whinney move to a new apartment. His clothing and a piece of furniture was in the car.
[ 218 Pa. Super. Page 45]
The police then secured a search warrant for the car. It was a 1965 Plymouth Convertible, purchased second hand by his mother on February 27, 1967. It was a two-door model so that the front seats had to be pushed forward to get into the rear seats.
The search did not disclose any marijuana cigarettes, nor in fact, any amount of marijuana alone or in any container or package or in bulk. The search uncovered an old, tin, tobacco can under the back seat, in which there were two, as described by the police, homemade cigarettes, with the Commonwealth expert testifying that they were the remains of two Marlboro cigarettes and two other commercial cigarettes. There was no marijuana in the can.
From the crevices where the front seats were pushed forward, they gathered the debris in a cellophane packet which was identified as C(1); the contents of the ashtray were placed in a cellophane packet and marked C(2); and from the floor of the car under the rear seat, they collected dirt and refuse which was placed in a cellophane packet identified as C(3).
The Commonwealth expert testified that a chemist under his direction examined the contents of the small packets "attempting to separate out any material which might be marijuana" and then examined that under a ...