Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1970, No. 908, in case of Commonwealth of Pennsylvania v. Joseph Rota.
Donald Moser, with him Nino V. Tinari, for appellant.
Louis A. Perez, Jr., Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy 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 Watkins, J. Hoffman, J., concurs in the result.
[ 222 Pa. Super. Page 164]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia after conviction in a non-jury trial for possession of dangerous drugs; from the denial of the court below of a Petition to Suppress Evidence; and from the denial of post-trial motions. He was sentenced to three to twelve months imprisonment.
On November 16, 1970, two detectives armed with a bench warrant, the legality of which is admitted by the appellant, arrived at his premises at about 1:15 P.M. They knocked loudly on the apartment door and stated who they were and the purpose of the visit. No response was received so the knock and announcement were repeated. Having received no response, they tried the door, found it unlocked and fastened on the inside
[ 222 Pa. Super. Page 165]
by a chain. They could partially open the door and view the interior. The police observed the appellant sleeping fully clothed on a bed. Repeated shouts aroused the appellant who waking reached in a menacing fashion under the mattress. The police broke the chain and seized the appellant.
Under the mattress the police found a loaded revolver, fully operable. The appellant blurted out "you got me". He was informed of his constitutional rights and then refused to make any statement. As the detectives were about to leave the apartment with their prisoner, he asked for his coat. One of the detectives picked it up, searched it for weapons, and found a Manila envelope marked with the letters: "PUR" on the outside. The appellant blurted out "you got me, it's a half ounce of meth".
On top of a coffee table in full view of the officers they saw another Manila envelope similar to the one taken from the appellant's coat pocket. The contents of both envelopes were analyzed and revealed 354 and 9.2 grains of Methamphetamine Hydrochloride, respectively. The appellant moved to suppress the evidence which the court below denied.
The question raised before us on appeal is the legality of the seizure of the two packages taken from him at the time of his arrest with a body warrant. Admission of evidence of the second envelope was merely cumulative and added little to the Commonwealth's case against the appellant. The doctrine that a search of appellant and of his immediate surroundings without a search warrant may be conducted, if incident to a lawful arrest, is clearly lawful. Ker v. California, 374 U.S. 23, 10 L. Ed. 2d 726, 83 S. Ct. 1623 (1963). The contention of the appellant, however, is that in the instant case ...