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COMMONWEALTH v. VASSILJEV (03/23/71)

decided: March 23, 1971.

COMMONWEALTH
v.
VASSILJEV, APPELLANT



Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1970, No. 1322, in case of Commonwealth of Pennsylvania v. Sarge Vassiljev.

COUNSEL

John W. Packel, Assistant Defender, with him Vincent J. Ziccardi, Defender, for appellant.

James D. Crawford, Deputy District Attorney, with him Milton M. Stein, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J. Wright, P. J., would affirm on the opinion of the court below.

Author: Jacobs

[ 218 Pa. Super. Page 217]

Appellant was convicted of possession of a narcotic drug after trial before Judge Chalfin without a jury. Motions for a new trial and in arrest of judgment were refused and appellant sentenced. He appeals on the ground that the narcotics were unlawfully seized and should not have been admitted into evidence.

Prior to trial, a suppression hearing was held before Judge Reimel who refused to suppress the narcotics. The only witness as to the manner in which the evidence was obtained was a police officer. The appellant did not testify at the suppression hearing or at the trial. The police officer testified at both the suppression hearing and the trial. His testimony differed in certain details between the hearing and the trial as to the manner of obtaining the narcotics; however, the following facts can be supported by his testimony on both occasions.

Two police officers saw appellant and a negro male pass something between them in the 1100 block of Wallace Street on January 2, 1970, at 11:15 p.m. As the officers approached in their patrol car, both men ran. They stopped the appellant promptly, put him in their patrol car, and took him to the police station. The narcotics were obtained by the police after arrival at the police station. When the police first saw the two men they thought a "strong arm robbery" was in progress and that appellant was the victim. The police officer gave several different reasons for picking up appellant: He said that he picked him up for investigation,

[ 218 Pa. Super. Page 218]

    that he brought him in because of many complaints of illegal narcotics traffic in that area, and that he took him in because he told the officer he was trying to find Conshohocken.

At the suppression hearing, the police officer testified that while appellant was at the police station "a bundle of white powder fell on to the floor." At the trial, the same police officer testified that the appellant was searched at the police station and the narcotics found in his left shoe. At the trial, appellant renewed his objection to the admissibility of the evidence but was, of course, bound by the provisions of Pa. R. Crim. P. No. 323(j) to the effect that the determination at the hearing was binding at trial.

Appellant is now entitled to appellate evaluation of the admissibility of the evidence. Commonwealth v. Bosurgi, 411 Pa. 56, 64, 190 A.2d 304, 309 (1963); Commonwealth v. Washington, 428 Pa. 131, 132, 236 A.2d 772, 774 (1968). Although the judge at trial under the mandate of Pa. R. Crim. P. No. 323(j) on the question of admissibility could not consider any evidence unless it was unavailable at the suppression hearing, we are not similarly bound on appeal. On appeal from judgment of sentence, we review the entire record both of the suppression hearing and of the trial. Upon consideration of the police officer's testimony at trial, we are satisfied that the narcotics were obtained after a search of the appellant at the station house.

We need not pass on whether the police acted properly in taking the appellant in for investigation because, even if they acted properly, a complete search of his person was unreasonable. The constitutional limits of a reasonable search were set forth in Commonwealth v. Hicks, 434 Pa. 153, 158, 253 A.2d 276, 279 (1969): "First, a seizure and search, such as here involved, is ...


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