Appeal from judgment of Court of Common Pleas, Criminal Division, of Allegheny County, Feb. T., 1970, No. 1153, in case of Commonwealth of Pennsylvania v. Donald Massie.
David O'Hanesian, with him Forsyth, Fowkes & O'Hanesian, for appellant.
Carol Mary Los and J. Kent Culley, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Cercone, J. Wright, P. J. and Watkins, J., would affirm the judgment below.
[ 221 Pa. Super. Page 454]
Defendant, Donald Massie, was charged and convicted of possession and control of narcotic drugs in violation of The Drug, Device and Cosmetic Act (Act of September 26, 1961, P. L. 1664, § 4, as amended, January 12, 1970, P. L. (1969) 454, § 1). He filed a motion in arrest of judgment on the ground that his arrest without warrant lacked probable cause. The lower court refused the motion and thus this appeal.
In considering this motion in arrest of judgment we consider the evidence in the trial most favorable to the Commonwealth: Commonwealth v. Zeringo, 214 Pa. Superior Ct. 300 (1969); Commonwealth v. Green, 210 Pa. Superior Ct. 482 (1967).
Officer James Moore of the Pittsburgh Police Department received a phone call from an informant that defendant was in the vicinity of the 1600 block of Centre Avenue in Pittsburgh and that he was dealing in narcotics. Acting upon this information Officer Moore and his partner proceeded without warrant to the 1600
[ 221 Pa. Super. Page 455]
block of Centre Avenue where they saw defendant, carrying a newspaper under his arm, coming out of a tavern. The officers approached defendant and noticed "that he was acting real nervous" and called out his name. Defendant stopped and asked, "What do you want?", and the officers replied, "We want to check you out for drugs". A scuffle between the officers and defendant then occurred. When asked to explain what he meant by a scuffle, Officer Moore testified at trial: "In other words, like you normally grab a man or touch a man, it wasn't that way, when we grabbed him he tried to wiggle away. That's when the newspaper dropped". During the scuffle Officer Moore's partner held defendant against the wall of a building and at that time the newspaper defendant was holding under his arm fell to the sidewalk. Underneath it Officer Moore found what was later ascertained to be one capsule of heroin and five capsules of cocaine. There was no evidence that the capsules were on the sidewalk before the scuffle began.
This is one of those unfortunate cases where police officers apprehend the culprit without the presence of that magical ingredient which the courts, though persevering to define, find undefinable and refer to generally as "probable cause". "Probable cause" is found to exist, it was held in Draper v. United States, 358 U.S. 307 (1959), at page 313, "where 'the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that 'an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162 (1925).'"
A study of the officer's testimony as to the informant's statements requires the conclusion that the officers, though armed ...