decided: January 8, 1975.
Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, July T., 1973, No. 354, in case of Commonwealth of Pennsylvania v. Michael F. Shillingford.
John P. Yatsko, with him Fitzgerald & Yatsko, for appellant.
Stewart J. Greenleaf, Assistant District Attorney, with him William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Watkins, P. J., and Van der Voort, J., dissent.
[ 231 Pa. Super. Page 408]
This is an appeal from a conviction of illegal possession of a controlled substance. For the reasons stated hereinafter we reverse the judgment of sentence and grant a new trial.
The pertinent facts reveal that on July 18, 1973, Patrolman Nicholas Borrelli, in response to a radio call, arrived at the scene of a traffic accident in Montgomery County. He observed the appellant in the driver's seat of his car which had apparently hit a parked car. When the officer asked the appellant to step out of his car and produce his license, the officer observed that the appellant had difficulty in maintaining his balance, that his eyes were "red and glassy", and that he had the odor of alcohol on his breath. After noting from the license
[ 231 Pa. Super. Page 409]
that the appellant was 20 years old, the officer placed him under arrest for a violation of Section 6308 of the Crimes Code.*fn1 After being transported to the police department a search was made of appellant's person and two pills were found concealed inside a packet of cigarettes which was in a shirt pocket. Subsequent analysis identified the pills as secobarbitol, a barbiturate which falls under Schedule III of The Controlled Substance Act.*fn2 Appellant was then charged with illegal possession of a controlled substance and subsequently convicted. In this appeal, we are constrained to accept appellant's first argument challenging the legality of his initial arrest, which we find dispositive.*fn3
[ 231 Pa. Super. Page 410]
The offense for which appellant was arrested, underage drinking,*fn4 is a summary offense under the Crimes Code and the method by which proceedings for a summary offense can be instituted were governed by the Rule of Criminal Procedure in effect at the time of the occurrence, Rule 102.*fn5 Rule 102 provided for the institution of criminal proceedings by:
"5. An arrest without a warrant when the offense is a summary offense which involves a breach of the peace, or endangers property or the safety of any person present provided the police officer making the arrest displays a badge or other symbol of authority or is in uniform.
"6. A citation when the offense is a summary offense under The Vehicle Code, provided the police officer is in uniform.
"7. A citation when the offense is any other summary offense, provided the police officer displays a badge or other sign of authority or is in uniform."
Thus, the only permissible arrest without a warrant for a nontraffic summary offense occurs when the summary offense "involves a breach of the peace, or endangers
[ 231 Pa. Super. Page 411]
property or the safety of any person present." This Court held in Commonwealth v. Pincavitch, 206 Pa. Superior Ct. 539, 214 A.2d 280 (1965), that underage drinking is not such an offense. Therefore, the proper procedure would have been for the officer to issue a citation to the appellant rather than arrest him. The procedure adopted by the officer was not in compliance with Rule 102 and the arrest was, therefore, illegal*fn6 and any evidence seized as a result of the illegal arrest*fn7
[ 231 Pa. Super. Page 412]
should have been suppressed. Commonwealth v. Jacoby, 226 Pa. Superior Ct. 19, 311 A.2d 666 (1973); Commonwealth v. Wilson, 225 Pa. Superior Ct. 513, 312 A.2d 430 (1973); Commonwealth v. Reeves, 223 Pa. Superior Ct. 51, 297 A.2d 142 (1972).
Judgment reversed and new trial granted.
Judgment of sentence reversed and new trial granted.