Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1972, No. 8, in case of Commonwealth of Pennsylvania v. Clarence Wright.
Louis M. Natali, Jr., with him Segal, Appel and Natali, for appellant.
Bonnie Brigance Leadbetter, Assistant District Attorney, with her David Richman, 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 Watkins, P. J. Jacobs, J., concurs in the result. Spaeth, J., dissents. Dissenting Opinion by Hoffman, J.
[ 234 Pa. Super. Page 85]
This is an appeal from the judgment of sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, after conviction in a non-jury trial of the charge of possession of a controlled substance with intent to deliver; and from the denial of post-trial motions.
On a Sunday, September 3, 1972, at about 7:59 A.M., a police officer observed an automobile being driven so slowly, at an estimated speed of five miles per hour, that the officer suspected that the operator was intoxicated. He had observed the car for several blocks and it was interfering with the flow of traffic. He stopped the automobile and the operator could not produce an owner's card. He was not intoxicated. The officer asked him to step out of the car so that he could check the serial numbers of the car on the inside of the car door so that they could be checked with the stolen car list.
[ 234 Pa. Super. Page 86]
As he was copying the number, he observed, in plain view, on the floor on the driver's side of the car a blue paper bag. On top of the bag, which was open at the top, was a bundle of glassine packets (25) containing a white powder. The officer emptied the blue bag and found it contained 9 bundles (225 packets) identical to the first bag found on top. He then placed the first bag in the blue bag with the rest of the packets, placed the appellant under arrest and issued a citation for traffic violation. The bag containing the 10 bundles was submitted to the police laboratory for chemical analysis. The chemist found that all packets contained heroin.
A motion to suppress this evidence was held before Judge Vito Canuso, who suppressed the nine bundles found inside the blue bag, but denied suppression of the bag found in clear view of the officer. He also found that the car stop and registration check were proper and that the initial bundle was seized pursuant to the plain view doctrine. This ruling is not contested by the appellant. The Commonwealth had no need to appeal the suppression ruling concerning the nine bags as it had the evidence of the tenth bag, although contending the ruling to be clear error. Commonwealth v. Maione, 227 Pa. Superior Ct. 239, 324 A.2d 556 (1974). When the officer stumbled upon the heroin in plain view, he had a right to search the entire automobile. Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972). The case was tried before Judge Merna B. Marshall, sitting without a jury, and the appellant was found guilty. His post-trial motions were denied and he was sentenced to a term of two (2) to five (5) years imprisonment.
The contention of the appellant is that the suppression order was violated by references to the suppressed nine bundles. On direct examination, the officer testified that he seized the one bundle and turned it over to the laboratory for analysis. The chemist testified that he had analyzed all the packets given to him and that each contained
[ 234 Pa. Super. Page 87]
heroin. The Commonwealth, in its presentation, carefully avoided mention of the number of packets or bundles analyzed.
On cross examination, it was brought out that the chemist, who in fact analyzed all the packets, could not distinguish between the suppressed bundles and the nonsuppressed bundle. The appellant contends that the chemist could not legally testify to the suppressed bundle. Clearly it is logical that the police had a right to test all the bags to determine the content of heroin. The only use precluded by the suppression order is the introduction of the suppressed evidence as a part of the Commonwealth's case.
Suppressed evidence may be used in grand jury proceedings. U.S. v. Calandra, 414 U.S. 338, 94 S. Ct. 613, 38 L. Ed. 2d 561 (1973). Evidence suppressed as to one defendant may be introduced against another one who has no standing to object to the illegal search. Alderman v. United States, 394 U.S. 165, 174, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969). Suppressed evidence may even be used for impeachment purposes when a defendant takes the stand. Walder v. United States, 347 U.S. 61, 74 S. Ct. 354, 98 L. Ed. 503 (1954); Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971). It may be used in parole or probation hearing. Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973). See also, Commonwealth v. Hannah, 231 Pa. Superior Ct. 522, 332 A.2d 539 (1974). Clearly if suppressed evidence may be introduced in these circumstances, it can surely be tested for the purpose of determining the nature of the seized evidence. Since the chemist on direct examination avoided mention of the number of packets tested, it was not error for him to testify that all the material tested contained heroin. The references to the nine bundles that appear in this record were elicited on cross-examination by defense counsel.
[ 234 Pa. Super. Page 88]
Defense counsel knew from the testimony of the chemist that all the packets contained heroin so that the only purpose of the cross-examination was to place the Commonwealth on the horns of a dilemma, with a choice of: (1) leaving the record in a state of confusion with the created inference that the bundle seized had some how become misplaced, and because the chemist could not distinguish the non-suppressed bundle from the others, that his analysis was not related to the powder seized; or (2) divulging the suppressed evidence to the trial court in an effort to clear up the confusion, and so risk reversible error. The references made to the nine bundles were clearly ...