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COMMONWEALTH v. BROWN (02/27/75)

decided: February 27, 1975.

COMMONWEALTH
v.
BROWN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1972, No. 2353, in case of Commonwealth of Pennsylvania v. Robert L. Brown.

COUNSEL

Marvin F. Galfand, Myrna W. Galfand, and Dragon, Verlin & Galfand, for appellant.

James J. Wilson, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Cercone, J., concurs in the result.

Author: Van Der Voort

[ 232 Pa. Super. Page 464]

The Appellant, Robert L. Brown, was tried before a judge, sitting without a jury, on charges of possession and possession with intent to deliver a controlled substance, namely heroin. Prior to trial, the Appellant unsuccessfully moved to suppress evidence seized from him. After a finding, at trial, of guilt on both counts, and post trial motions which were denied, Appellant filed this direct appeal to our Court. He raises several claims of error.

First, Brown argues that the evidence against him was seized as a result of an unlawful search. The record shows that on the evening of September 8, 1973, two Philadelphia police officers were cruising in a patrol car

[ 232 Pa. Super. Page 465]

    when they noticed a car driven by the Appellant. Their attention was drawn to this car by the fact that the entire windshield of the car was cracked; as the car passed by, they also saw that it had no rear lights. After the officers signaled for the Appellant to pull over, which he did, the officers parked behind him and directed their spotlight on the car.

One officer left the patrol car and approached the Appellant's car. As the policeman came within a few feet of the driver's door, the Appellant got out on the driver's side. The officer immediately noticed a metallic object in Brown's right hand, shining in the glare of the spotlight and then saw the Appellant quickly shove this object into the front waistband of his trousers.

Instinctively, the officer reached out and grabbed the Appellant's right hand, and pulled it from behind his belt. The officer later testified he believed at the time that the shiny metal object was a small derringer. After gaining control of Appellant's right arm, the officer forced Brown to open his hand, which still grasped the metallic object. When Brown's grip relaxed, the officer saw that the shiny object was not a gun or really any other type of weapon, but rather, was a package of glassine envelopes partially covered by tin foil. Closer inspection showed the glassine envelopes contained a white powder which later proved to be heroin. The officer then placed Brown under arrest.

[ 232 Pa. Super. Page 466]

The Appellant claims that the "search" which revealed the tinfoil covered packets of heroin was unlawful. We cannot agree. In the landmark search and seizure case of Terry v. Ohio, 392 U.S. 1 (1968), the United States Supreme Court recognized the ". . . myriad daily situations in which policemen and citizens confront each other on the street." Id. at 12. The Supreme Court held that police officers can judge each such confrontation in light of their individual experience and common sense. Supra, at 27-28. We ...


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