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 ...