Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1970, No. 2248, in case of Commonwealth of Pennsylvania v. Thomas Meadows.
Francis S. Wright, Assistant Defender, with him Vincent J. Ziccardi, Defender, for appellant.
Judith Dean, Assistant District Attorney, with her 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, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J. Wright, P. J., and Watkins, J., dissent.
[ 222 Pa. Super. Page 204]
This is an appeal from appellant's conviction for the unlawful possession of narcotic drugs. Appellant contends that his motion to suppress the evidence used against him was improperly denied.
At the suppression hearing on appellant's motion and again at trial, the arresting police officer testified that on May 18, 1970, he and another officer were assigned to the Philadelphia Highway Patrol. At approximately 11:15 a.m. on that date, the officers were patrolling south on 23rd Street on motorcycles when they observed appellant step from an alcove in the rear of a three story brick building at 2301 Green Street with a brown paper bag in his hand. Appellant looked towards the police officers and then stepped back into the alcove. The officers then turned and came back. As the officers were returning to 2301 Green Street, they noticed a Cadillac parked directly across the street from the alcove. The officers observed the appellant's co-defendant, Deramus Knowles, behind the wheel of the Cadillac, slide down into the seat approximately eye level with the steering wheel. One of the officers then parked his motorcycle directly in front of the Cadillac and observed appellant again coming out of the alcove across the street. The officer approached Knowles in the Cadillac and asked him what he was doing. Knowles stated that he was waiting for the man across the street, referring to appellant. The officer
[ 222 Pa. Super. Page 205]
called to appellant to come over, and when he approached the officers, he was asked if he lived there. Appellant stated that he did not live there; that he lived at 7th and Melon Streets. The officer testified at trial that he investigated appellant and Knowles because the actions of the two men caused him to suspect that they were committing a burglary.
After appellant answered that he did not live in the residence at 2301 Green Street, the officer decided to frisk him "for our protection, being as he did put this [small paper bag which he was carrying] up under his arm." When the officer asked appellant to place his hands on the automobile, appellant stepped back a couple of steps and turned to go. Appellant was then seized from behind by the other officer. A struggle occurred for the bag under appellant's arm. The officer testified that the bag was a small paper lunch bag, folded over, and very hard. The officer opened the bag to see if it contained a weapon, and discovered several bundles of glazed packets containing a white powder. The officer then placed both defendants under arrest, and told Knowles to get out of the Cadillac and place his hands on the top of the car. The officer frisked Knowles, and then handcuffed him. As the officer pulled Knowles' right hand from the top of the car, Knowles left a cigarette packet and a folded dollar bill on the car roof. When the officer picked up the dollar bill, white powder came out of it, and upon opening the dollar bill the officer discovered a packet of white powder.
A search of appellant at the scene of the arrest produced a set of keys and a Bell Telephone receipt with the address 2301 Green Street on it. These were not confiscated, and were later found discarded in the patrol wagon which transported the defendants to the police station. The arresting officer then contacted the narcotics squad, and an officer with the narcotics squad
[ 222 Pa. Super. Page 206]
obtained a search warrant for 2301 Green Street. A search of that residence produced a brown paper bag containing narcotics, and a gray strongbox which was unlocked with a key from the set of keys taken from the Cadillac in which Knowles had been sitting at the time of his arrest. The strongbox contained narcotics. One half of a playing card, the deuce of diamonds, was found on top of the strongbox at the time of the search. The Commonwealth's testimony at trial established that the keys taken from the Cadillac also opened the door to the residence at 2301 Green Street. The information caused the police to obtain a warrant for a search of Knowles' residence at 5922 North 19th Street. ...