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COMMONWEALTH PENNSYLVANIA v. RALPH SMITH (10/20/78)

decided: October 20, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
RALPH SMITH, APPELLANT



No. 1533 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 2032-2033 March Sessions, 1976.

COUNSEL

Robert B. Mozenter, Philadelphia, for appellant.

Robert B. Lawler, Assistant District Attorney and Edward G. Rendell, District Attorney, Philadelphia, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a concurring statement. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Jacobs

[ 258 Pa. Super. Page 150]

This appeal arises from appellant's conviction and sentencing in the lower court on charges of carrying a firearm in public without a license and possession of a controlled substance. Two issues are presented for our consideration: 1) whether appellant's arrest was supported by probable cause; and 2) whether sufficient evidence existed to establish appellant's possession of the firearm and the controlled substance. For the following reasons, we hold that the first issue is waived and the second issue is meritless, and therefore affirm the judgment of the court below.

At about 9:30 p. m. on October 24, 1974, an informant told Officer Richard Smith that he had just seen appellant selling narcotics on a public street. The informant, who had provided information in the past, also related that the drugs were being dispensed from a paper bag on which appellant was standing.

The officer proceeded to the scene of the alleged sales and observed appellant for approximately fifteen minutes. During that time, Officer Smith witnessed exchanges between appellant and three separate individuals, and saw appellant reach down by his foot before and after each transaction. Thereupon the officer and the other members of his surveillance team approached appellant and arrested him. A search of the paper bag on which the defendant had been standing yielded six packets of heroin and a loaded pistol.

After trial, appellant was convicted of carrying firearms on a public street without a license and possession of a controlled substance, and sentenced to concurrent terms of eleven and one-half to twenty-three months imprisonment. This appeal followed.

Appellant initially contends that his arrest was illegal because the arresting officer lacked probable cause at

[ 258 Pa. Super. Page 151]

    the time the defendant was taken into custody. Regardless of the merits of this assignment of error, the issue of probable cause has not been preserved for our review. Appellant's written post-verdict motions ...


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