Vincent J. Ziccardi, Defender, John W. Packel, Chief, Appeals Div., Defender Assn. of Philadelphia, Anne F. Johnson, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., concurs in the result. Pomeroy, J., filed a concurring opinion in which Eagen, J., joins.
Appellant Deramus Knowles and a co-defendant, Thomas Meadows, were convicted of possession of narcotics*fn1 and each was sentenced to two to five years imprisonment. Pretrial both defendants separately filed seasonable motions to suppress; both motions were denied.
Jointly tried non-jury, both men were found guilty. Separate appeals were taken to the Superior Court. In Meadows' appeal the Superior Court held that certain evidence introduced over objection against both defendants should have been suppressed; Meadows was granted a new trial. Commonwealth v. Meadows, 222 Pa. Super. 202, 293 A.2d 365 (June 16, 1972). The Commonwealth did not seek an allowance of appeal.
Despite the identical circumstances of the two cases, the Superior Court six days later affirmed appellant's judgment of sentence by a per curiam opinionless order. Commonwealth v. Knowles, 222 Pa. Super. 706, 291 A.2d 899 (June 22, 1972). We granted appellant's petition for allowance of appeal.*fn2 On the basis of the Fourth Amendment to the United States Constitution and article I, section 8 of the Pennsylvania Constitution, P.S.,*fn3 we remand for a new trial.
Appellant while sitting behind the wheel of his car, parked on Green Street in Philadelphia, was stopped by a policeman at approximately 11:15 a. m. on May 18, 1970.*fn4 At trial the officer testified that he stopped appellant because his suspicion had been aroused by seeing another man across the street from appellant exit and quickly re-enter a building. The officer further stated that he questioned appellant because appellant was sitting slumped down in the driver's seat. When appellant
was asked what he was doing, he responded that he was waiting for Meadows, who was the man the officer had earlier noticed. At this point, Meadows was called over by the police. After a few words, the officer wrestled a paper bag from Meadows, looked inside, and discovered narcotics. Both Meadows and appellant were then arrested.*fn5
So that appellant could be searched, the officer directed him to place his hands on top of the car. When the officer went to handcuff appellant, he discovered a cigarette package and a rolled-up dollar bill on top of the car where appellant's right hand had been. In the dollar bill was a minute quantity of narcotics.
A patrol wagon arrived and both appellant and Meadows were taken to police headquarters. Upon the arrestees' exit, keys and a telephone receipt were discovered in the wagon. At trial the Commonwealth established that these belonged to Meadows.
Based upon the evidence seized, the police that day obtained a search warrant for the premises on Green Street from which Meadows had been seen entering and leaving. This search revealed more narcotics.
Immediately thereafter and again only upon the evidence thus far seized, a search warrant for appellant's residence was issued. No narcotics were found there, although uncovered was some evidence circumstantially indicating that appellant had been present in the Green Street premises.
All this evidence was introduced at trial against both defendants. Each reasserted his objection to its admission at ...