decided: March 27, 1973.
Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, Feb. T., 1971, No. 1302, in case of Commonwealth of Pennsylvania v. Stacy Reese Siegel.
J. Alan Johnson, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellant.
Wendell G. Freeland, with him Lichtenstein & Bartiromo, for appellee.
Wright, P. J., Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. (Watkins, J., absent.) Opinion by Jacobs, J.
[ 223 Pa. Super. Page 399]
At 9:00 p.m., on October 17, 1970, two police officers of Mount Lebanon Township, Allegheny County, observed a flash of light from within an automobile parked in a Mount Lebanon church parking lot. One of the officers subsequently testified that the flash was suggestive to him of a fire in the interior of the vehicle and that as a result he approached the driver's side of the car. His police report and trial testimony are in conflict as to whether at this point he knocked on the car window or merely continued to observe the vehicle.*fn1 The defendant, who was seated in the driver's position, rolled down his window, whereupon the officer observed smoke within the car and noted a strong smell of marihuana. He also observed defendant's female companion place a cigarette on the car seat.
It is unclear whether defendant and his companion were immediately told they were under arrest or whether the second officer's act of opening the passenger door and examining the cigarette, which he concluded
[ 223 Pa. Super. Page 400]
contained marihuana, preceded notification of arrest.*fn2 In either event, after being informed of his constitutional rights, defendant voluntarily produced a small envelope from the car containing an additional quantity of marihuana.
On January 3, 1972, defendant was tried non-jury for corrupting the morals of a minor and for possession of narcotic drugs. After denial at trial of his application to suppress evidence and statements resulting from the above-described incident, defendant was acquitted on the charge of corrupting the morals of a minor and convicted on the charge of possession of narcotic drugs. Timely motions in arrest of judgment and for a new trial were filed. Subsequently, the lower court in banc granted defendant's motion in arrest of judgment.
The Commonwealth appeals.
It appears from the opinion of the lower court in banc that the order in arrest of judgment was based upon a ruling that the evidence was insufficient to sustain the verdict. It further appears that the insufficiency of evidence resulted from a view of the record as it would have been constituted had defendant's application to suppress the evidence been granted -- the lower court being of the opinion that the denial of the application was erroneous.*fn3
[ 223 Pa. Super. Page 401]
In so viewing the record, the lower court in banc was in error. "[I]n passing upon [a motion in arrest of judgment], all evidence actually received must be considered, whether the trial rulings thereon were right or wrong." Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A.2d 884, 886 (1965) (lower court held in error in granting motion in arrest of judgment on ground of insufficient evidence, having excluded in retrospect a confession it believed unconstitutionally obtained and improperly admitted). See also Commonwealth v. Hazlett, 429 Pa. 476, 240 A.2d 555 (1968); Commonwealth v. Crews, 429 Pa. 16, 239 A.2d 350 (1968); Commonwealth v. Maybee, 429 Pa. 222, 239 A.2d 332 (1968). When the evidence actually received in the present case is considered, and when it is viewed in the light most favorable to the Commonwealth, with the Commonwealth receiving the benefit of all reasonable inferences therefrom,*fn4 it was certainly sufficient to sustain the verdict. Consequently, the order of the lower court must be reversed and the record remanded for disposition of the pending motion for a new trial.
Order reversed with a procedendo.
Order reversed with procedendo.