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COMMONWEALTH PENNSYLVANIA v. GERALD KELLY (10/06/77)

decided: October 6, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
GERALD KELLY, APPELLANT



No. 1710 October Term, 1976, Appeal from the Order dated May 12, 1976, of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Misc. No. 76001809 (M.C. No. 75-11-816).

COUNSEL

John W. Packel, Assistant Public Defender, Philadelphia, for appellant.

Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, Philadelphia, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion in which Jacobs and Spaeth, JJ., join.

Author: Price

[ 250 Pa. Super. Page 124]

On March 2, 1976, appellant Gerald Kelly was found guilty in the Municipal Court of Philadelphia of possessing a controlled substance.*fn1 On May 12, 1976, his petition for a writ of certiorari to the Court of Common Pleas of Philadelphia County was denied. We affirm the order of the lower court.

At approximately 9:00 p. m. on November 8, 1975, Officers William Atwell and Francis Czarnecki of the Philadelphia Police Department were patrolling their assigned district in a patrol wagon. At the intersection of Fifty-fifth and Pine Streets, the officers observed an automobile being operated with an expired inspection sticker. The patrol wagon's spotlight and emergency dome lights were activated, and the vehicle under observation pulled to the curb. Appellant, the driver of the car, got out and began walking back toward the officers. He handed his driver's license and registration certificate to Officer Czarnecki.

Two other individuals occupied the vehicle, one in the front passenger's seat and one in the back. Officer Atwell proceeded to the front passenger's door and directed the beam of his flashlight into the front seat of the vehicle. The light illuminated a small amber vial, with a white plastic cap, containing nine silver foil packets, between the passenger's seat and the driver's seat. The vial had a Sun Ray Drug label and appellant's name on it.

Officer Atwell reached through the open passenger's window, obtained the plastic vial, and displayed it to Officer Czarnecki. Appellant was placed under arrest and taken to the eighteenth district police station. There, a search of appellant yielded a manila envelope containing three more foil packets. The three packets from the manila envelope and five of the nine packets from the vial were later determined to contain methamphetamine, a controlled substance.

[ 250 Pa. Super. Page 125]

Appellant first contends that the lower court should have granted a writ of certiorari because, although the complaint charged him with possession of "(12) foil packets cont. a white powder Alleged Herion [sic]," he was convicted of possession of methamphetamine. At the beginning of trial, appellant's counsel and the district attorney stipulated that the foil packets contained methamphetamine. However, appellant first brought the variance between the complaint and the proof to the lower court's attention in his petition for a writ of certiorari. This was not the earliest stage of the proceeding at which it could have been raised, and therefore the issue was waived. Commonwealth v. Tucker, 461 Pa. 191, 335 A.2d 704 (1975); Commonwealth v. Segers, 460 Pa. 149, 331 A.2d 462 (1975). Furthermore, appellant was sufficiently advised of the nature of the offense charged in accordance with Pa.R.Crim.P. 132. Appellant's defense at trial was based entirely on the alleged invalidity of the arrest. The fact that the complaint misstated the controlled substance he was alleged to have possessed did not hinder the presentation of his defense.

Second, appellant contends that the writ of certiorari should have been granted because evidence seized in an illegal arrest was admitted at his trial. However, the arrest in this case was not illegal. The officers in this case had reason to stop appellant's car. Thus, this case is distinguishable from Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973), which forbids routine stops. Similarly, Commonwealth v. Santiago, 220 Pa. Super. 111, 283 A.2d 709 (1971), is distinguishable because in that case, the circumstances surrounding the initial police-citizen contact did not give the police officer reason to pursue the defendant and ultimately to find the controlled substance. In this case, the police officers were clearly correct in stopping appellant.

Appellant vigorously argues that Officer Atwell acted improperly when he peered into appellant's car with a flash-light. We held to the contrary in Commonwealth v. DeJesus, 226 Pa. Super. 79, 310 A.2d 323 (1973). Therefore, the ...


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