Appeal from the Judgment of Sentence in the Court of Common Pleas of Montgomery County, Criminal Division at Nos. 1719 and 1719.2 April Term, 1974
Calvin S. Drayer, Jr., Assistant Public Defender, Norristown, for appellant.
William T. Nicholas, District Attorney, Norristown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Price, J., files a dissenting opinion in which Hoffman and Spaeth, JJ., join.
[ 248 Pa. Super. Page 136]
The issues in this appeal are whether the sentence imposed on appellant should be reversed because (1) the court refused to suppress certain evidence of a gun and drugs found in the clothing of appellant and (2) the case was not tried within the time period mandated by Rule 1100 of the Rules of Criminal Procedure.
[ 248 Pa. Super. Page 137]
Appellant was arrested in a women's clothing store on May 7, 1974, while allegedly attempting to rob the store. When he and another man walked into the store, Carolyn Abrams, who was operating the store alone at the time, became suspicious of the behavior of the men, went into the back room and telephoned the Philadelphia branch of her store for help. The message was promptly relayed to the police. While she was still on the telephone, the two men entered the back room, the appellant carrying two bathing suits which he said he wished to purchase. As Mrs. Abrams began to write the sales slip, appellant took a gun from his pocket, put it against the left side of her ribs and said, "This is a stick up, give me all your money." At that moment, the police arrived.
As the officer entered the store, he saw one man in the front of the store and the appellant in the back room with Carolyn Abrams. He went to the back room and asked what the problem was. He received no immediate answer, but observed that Mrs. Abrams looked "white as a ghost" and that appellant's hands were shaking. He also observed that this back room did not appear to be a part of the store where customers were supposed to be and asked appellant to move to the front of the store. As appellant was leaving the back room, he began to take off his jacket and at that moment Mrs. Abrams told the officer that appellant had a gun. The officer thereupon placed both men against the wall and patted them down for weapons. A .32 calibre chrome-plated Iver Johnson pistol was found in the pocket of the jacket which appellant had been wearing.
Appellant was thereupon arrested, advised of his rights and taken to police headquarters where a routine search of his clothing revealed five plastic bags of methamphetamine, a schedule II narcotic.
A criminal complaint was lodged against appellant on May 7, 1974. He was indicted on December 13, 1974, and tried on September 10, 1975. The jury returned verdicts of guilty on
[ 248 Pa. Super. Page 138]
charges of criminal conspiracy, robbery and a violation of the Controlled Substances, Drug, Device and Cosmetic Act. Motions for a new trial and in arrest of judgment were argued and denied and appellant sentenced, whereupon this appeal.
Appellant contends that the sentence should be set aside because appellant's gun which was seized at the store and the methamphetamine which was taken from his coat pocket at the police station should have been suppressed on his motion because obtained without a search warrant.
The officer came to the store in response to a radio call to the effect that there were suspicious circumstances at the store. He found the female shopkeeper alone with appellant in the back room where under ordinary circumstances customers would not be. He saw another man in the front of the store and no one else present. He observed that the woman looked frightened. She told him that appellant had a gun. Based on this information and his own observations, he clearly had probable cause to believe that criminal activity had been or was in the process of being attempted. Accordingly the arrest and search were lawful and the evidence obtained therefrom; i. e., the gun, was admissible. The drugs found on appellant were also properly seized without a warrant since they were found pursuant to an appropriate inventory search in police headquarters after appellant was arrested. We conclude that neither the gun nor the drugs were obtained in violation of appellant's constitutional rights and were properly admitted in evidence.
We now turn to the timeliness of the trial within the limits mandated by Rule 1100 of the Rules of Criminal Procedure. The calendar of events on which this issue is to be determined is as follows:
May 7, 1974 Appellant arrested and criminal ...