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COMMONWEALTH PENNSYLVANIA v. CUBLER ET AL. (10/28/75)

decided: October 28, 1975.

COMMONWEALTH OF PENNSYLVANIA
v.
CUBLER ET AL., APPELLANTS



Appeal from judgment of sentence of Court of Common Pleas of Delaware County, May T., 1973, Nos. 459 and 460, in case of Commonwealth of Pennsylvania v. Donna Cubler and Bruce A. Ettien, Jr.

COUNSEL

Frank J. Marcone, for appellants.

Ralph B. D'Iorio and Anna Iwachiw Vadino, Assistant District Attorneys, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J. Concurring Opinion by Spaeth, J. Jacobs and Cercone, JJ., join in this opinion. Dissenting Opinion by Hoffman, J.

Author: Watkins

[ 236 Pa. Super. Page 616]

This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Delaware County by the defendant-appellants, Donna Cubler and Bruce A. Ettien, Jr., after conviction by a jury of possession of narcotics, possession of narcotics with intent to deliver and conspiracy and from the dismissal of a petition for the suppression of evidence and the denial of post-trial motions.

The basis of the appeal is that the verdict is against the evidence and that the evidence seized by the police should be suppressed since it was seized as the result of an unlawful arrest and search.

On February 21, 1973, an officer of the police department of the City of Chester was investigating a complaint by a motorist that a small boy had broken his windshield. The boy was pointed out by the owner of the car and as the officer approached him, he ran away. The policeman and the owner of the car followed him to a house located at 1218 Highland Avenue, Chester. This proved to be his home. The appellant Cubler answered the door and acknowledged the boy to be her son. The officer explained the incident of the broken window to her and she made arrangements with the owner of the car to pay for the damages. The house in question was under lease to Cubler.

As the officer was leaving the area, a neighbor approached him and related the information that while the officer was approaching the Cubler home, he saw the appellant Ettien lean out of the back door of the house and toss a black bag into a dog house located at the rear of the house. The attention of the neighbor was attracted to the house when he saw the officer chasing the Cubler

[ 236 Pa. Super. Page 617]

    child toward it. The neighbor's house is in the rear of the Cubler house about fifty to seventy feet away. The officer had personal knowledge that the house in question had been under surveillance for some time by the police for suspicion of drug activity.

The officer and the neighbor went to the rear of the house by a common walkway and the black bag could be seen sticking out from the dog house clearly visible to a passerby. The officer seized and opened the case and saw what he thought was narcotics. He radioed police headquarters, then went to the front of the house and awaited the arrival of the officers of the narcotics division.

The narcotics officers arrived and found the bag to contain narcotics. The officer then went into the house and arrested the two appellants and two other persons. A search warrant was then secured and appellant Cubler was served with the warrant. A search of the house revealed narcotics in the front and rear bedrooms and kitchen. A quantity of marijuana was found in a woman's coat in a closet and Cubler's pocketbook along with smoking pipes which contained residue of marijuana. Syringes were found in the front bedroom.

The analysis of the contents of the black bag confirmed the fact that it contained dangerous drugs which in the opinion of the officer were possessed for sale, due to the large quantity involved. The record discloses the items found in the black bag and the house, a list of which is attached to the lower court's opinion, included a large quantity of dangerous drugs from which the inference could be drawn that the possession was with the intent to deliver.

The appellants first contended that the black bag was illegally seized and searched since there was no probable cause for the search and seizure.

The officer was validly on the premises conducting police business and was given information that the appellant Ettien, positively identified by the informant

[ 236 Pa. Super. Page 618]

    neighbor, had thrown a black bag into the dog house. The action of the officer in traveling to the dog house by a common walkway where he saw the black bag in plain view cannot constitute a search and so no unlawful S. Ct. 746 (1927); Ellison v. U.S., 206 F.2d 476 (D.C. Cir. 1953). "It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence." Harris v. United States, 390 U.S. 234, 88 S. Ct. 992 (1968). See also Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972). "Personal belongings retain their constitutional protection until their owner meaningfully abdicates control and responsibility." Commonwealth v. Platou, 455 Pa. 258, 312 A.2d 29 (1973). United States v. Martin, 386 F. 2d 213 (3d Cir. 1967) held defendant's voluntary act of throwing a pocketbook containing narcotics into a pantry of the house which he was visiting was an abandonment. In the instant case, the appellant Ettien did not reside ...


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