decided: December 15, 1976.
COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
HOWARD HORSLEY, APPELLEE
Appeal from the Granting of a Motion in Arrest of Judgment by the Court of Common Pleas of Allegheny County, Penna., Criminal Division at No. 7640A September Term, 1972. No. 562 April Term 1975.
John J. Hickton, Dist. Atty., Charles W. Johns, Asst. Dist. Atty., Pittsburgh, for appellant.
Larry P. Gaitnes, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 244 Pa. Super. Page 92]
After a non-jury trial, appellee was convicted of possession and possession with intent to deliver, in violation of The Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-113. On July 16, 1974, the lower court entered an order denying appellee's motions for a new trial and in arrest of judgment. However, appellee filed a petition for reconsideration, and on April 7, 1975, the lower court entered an order partially vacating its order of July 16, 1974, and granting the motion in arrest of judgment. The Commonwealth appeals from this order, and we reverse.
The record discloses the following facts. On May 16, 1972, at about 12:30 p. m., Officer Patrick of the Pittsburgh Police Department was working a narcotics stakeout in the 2000 block of Center Avenue in the Hill District of Pittsburgh. From a concealed position the officer saw appellee give another man a "small metal-like object," from a brown paper bag, in return for money. (N.T. 6) When this happened again, the officer called his two partners, who were about a block and a half away, on his police walkie-talkie. When appellee saw
[ 244 Pa. Super. Page 93]
these two officers approaching, he walked over to a telephone pole and dropped the paper bag beside the pole. One of the officers picked up the bag, and saw inside it several tinfoil packets containing white powder. Appellee was then arrested.
Appellee contends, and the lower court evidently agreed, that Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973), governs this case.*fn1
The facts in Jeffries were as follows: While walking along a street, Jeffries saw some police officers in a car, and "quickened his pace." The officers left the car and started toward Jeffries, who began to run. During the ensuing chase Jeffries threw away a cigarette package. After the officers caught Jeffries, they recovered the package and it was found to contain heroin.*fn2
The first argument in Jeffries, as here, was that the warrantless arrest was without probable cause. Probable cause requires that the arresting officer have enough reasonably trustworthy information to justify a man of reasonable caution in believing that the person to be arrested has committed, or is committing, an offense. See Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). In Jeffries, the only information the officers had was flight, which is not enough to support a finding of probable cause. Commonwealth v. Pegram,
[ 244 Pa. Super. Page 94450]
Pa. 590, 301 A.2d 695 (1973). Here, however, one officer saw appellee engage in two transactions that the officer could reasonably believe were sales of a controlled substance, and another officer saw appellee drop a paper bag that the officer could reasonably believe contained heroin. This was enough to give the officers probable cause for the arrest. Commonwealth v. Lawson, 454 Pa. 23, 309 A.2d 391 (1973).
Appellee contends, however, that the officers were not entitled to consider the paper bag. In support of this contention appellee correctly notes that abandoned property may not be used for evidentiary purposes when the abandonment is coerced by unlawful police action. Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973). Thus in Jeffries the Court found that the abandonment was coerced by the unlawful action of the police in chasing Jeffries in order to seize him. The Court went on to say, however, that "[t]his is not a situation where the party spontaneously abandons the property upon sight of the police," supra 454 Pa. at 327, 311 A.2d at 918. Here that is just what appellee did. As the police did nothing unlawful in approaching appellee, it cannot be said that appellee was coerced by unlawful police action to abandon the paper bag. It was therefore properly seized.
Since Jeffries is inapplicable to this case, the lower court erred in granting the motion in arrest of judgment and the original verdict should be reinstated. Commonwealth v. Froelich, 458 Pa. 104, 326 A.2d 364 (1974).
The order granting the motion in arrest of judgment is vacated, the original verdict is reinstated, and the record is remanded for the imposition of sentence.