Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1971, No. 805, in case of Commonwealth of Pennsylvania v. Richard Walley.
A. Jay Molluso, and Techner, Rubin, Shapiro, Silverstein & Slass, for appellant.
James J. Wilson, James T. Ranney and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Watkins, J. Dissenting Opinion by Hoffman, J. Spaulding and Spaeth, JJ., join in this dissenting opinion.
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This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, by the defendant-appellant, Richard Walley, after conviction with two fellow defendants by the court below sitting without a jury, for the felonious
[ 225 Pa. Super. Page 467]
possession of drugs under Section 4 of the Act of September 26, 1961, P. L. 1664, 35 P.S. Sec. 780-4(q); from the denial of a motion to suppress the evidence; and from the denial of post-trial motions for a new trial and in arrest of judgment. He was sentenced to one to five years imprisonment and this appeal followed.
At about 4:30 p.m. on the afternoon of May 6, 1971, a number of police officers went to the Bartram Village Apartments at 5408 Eastwick Terrace to execute a search warrant in Apartment 3B. The search warrant was secured for that address and for the persons of Richard Walley, Ronald Allen and Brenda Stewart. Detective Vellucci and Corporal Hunt concealed themselves in the apartment building while the other two officers remained outside the building. The officers observed the appellant walk up to Apartment 3B and enter it using a key taken from his pant's pocket. He remained in the apartment for approximately five minutes then left. He entered an automobile and was driven away by the co-defendant Allen.
At about 5:45 p.m., Allen and Walley returned and while Walley remained in the car, Allen entered the apartment by the use of a key taken from his pocket. Vellucci and Hunt went to the door and receiving no response from their knocking tried the door, found it open and entered. The defendant Allen was sitting in the kitchen talking on the telephone. The defendant Stewart was in the bedroom of the apartment. Shortly afterward, the appellant got out of the car and entered the building approaching the door of 3B and taking his key out of his pocket. He had been followed by the other two officers and was apprehended as he was putting the key back into his pocket.
A search of the premises was then made. On a shelf in a closet off the living room was found a lidless shoe box containing 271 glassine bags of heroin. The box also contained a green paper on which was written
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"Pony, I counted all three packs. They are all okay." As the search was being conducted, all three defendants were conversing in the living room. Both the appellant Walley and defendant Stewart called the defendant Allen "Pony." Keys to the apartment were found on Walley and Allen and the sum of $900.00 in various denominations on the appellant.
The apartment in question was a four-room apartment. The testimony showed that the apartment was owned by the defendant Brenda Stewart and that the other two defendants had free access to it by means of keys. They were seen using them to obtain entry and the keys were on their persons at the time of the search. There was also evidence of the surveillance of the premises on March 3, 4, and 5 immediately preceding the arrest at which time the ...