submitted: March 23, 1979.
COMMONWEALTH OF PENNSYLVANIA
EDWARD LEATHERBURY, APPELLANT
No. 2170 October Term 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Nos. 1381-82 January Session, 1978.
Lynne D. Miller, Assistant Public Defender, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Price, Spaeth and Lipez, JJ.
[ 269 Pa. Super. Page 92]
This is an appeal from judgments of sentence imposed on convictions of delivery of a controlled substance and criminal conspiracy. The only question on appeal is whether it was error for the lower court to have denied appellant's motion to suppress the evidence found in a search incident to his arrest.
The facts are as follows. On November 16, 1977, Officers Clifford Ludd and Gary Davis of the Narcotics Unit of the Philadelphia Police Department, on duty in an unmarked car, saw appellant standing outside an apartment house.*fn1 Davis called out to appellant. Appellant walked over to the car, and Davis asked if he knew someone named Lavell. Appellant said he did not. Ludd asked if he knew where he could get a half, meaning half a bundle of heroin. Appellant responded, "I'll check it out," or words to that effect. Appellant walked toward the apartment house and spoke to Irvin Leatherbury, who was his co-defendant at trial. (The men are brothers, but this was not known to Ludd at the time.) Ludd got out of his car and walked over to the two men. Appellant told him, "This is the man, talk to him." Ludd then arranged to buy heroin from Irvin Leatherbury. However, appellant did not take part in the conversation,
[ 269 Pa. Super. Page 93]
nor could Ludd testify that appellant even heard it. Ludd then went with Irvin Leatherbury to a nearby residence at 762 June Court. Appellant did not go with them. Irvin Leatherbury went inside the residence and emerged with the heroin, and the purchase was completed outside. Ludd and Irvin Leatherbury then returned to the apartment house where the events in question had begun.
Shortly thereafter, Ludd and a back-up squad returned to the June Court address, and knocked on the door. Appellant was within and opened the door. He was arrested, and the two twenty-dollar bills that Ludd had given Irvin Leatherbury (serial numbers recorded) were found in his pocket. Irvin Leatherbury was found and arrested upstairs in the residence shortly afterwards.
Appellant argues that the officers had no probable cause to believe that he had committed any crime, and that therefore the two bills should have been suppressed as the fruit of an unlawful arrest. He relies on Commonwealth v. Flowers, 479 Pa. 153, 387 A.2d 1268 (1978), in which the Supreme Court found the evidence insufficient to convict a defendant of being an accessary before the fact to a sale of drugs. The defendant had been approached by a narcotics agent who asked whether he had any drugs in his possession. The defendant said he did not. A few minutes later a third party, Shiner, approached, and the defendant called the agent over and introduced the two, indicating that Shiner had some marijuana. Although the defendant was present during the ensuing sale, he did not participate or profit in any way. The court, rejecting a "but-for" test for criminal liability, found no evidence that the defendant had shared the intent that the crime be committed.
A distinction between Commonwealth v. Flowers, supra, and the case at hand, however, is that in Flowers the Court was examining the facts in the light of a claim of insufficient evidence, while here the question is one of probable cause to make an arrest. "Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed."
[ 269 Pa. Super. Page 94]
Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959). This test is not as demanding as the test for sufficiency, which is whether the evidence is strong enough to support a finding of guilt beyond a reasonable doubt. Thus, the evidence at trial may be insufficient, but the facts and circumstances known to the arresting officer at the time of the arrest (upon which the lawfulness of the arrest depends, Commonwealth v. Rush, 459 Pa. 23, 326 A.2d 340 (1974)) may nevertheless support a finding of probable cause. If at trial the Commonwealth had not proved appellant's possession of the two twenty-dollar bills, it might well be that under Flowers the evidence would be held insufficient.*fn2 Considering, however, not sufficiency but probable cause, we believe Ludd had probable cause to arrest appellant in that he knew enough to warrant a prudent person in believing that appellant intended to help Irvin Leatherbury make a sale of heroin. Ludd knew: that appellant knew he wanted to buy heroin; that appellant introduced him to Irvin Leatherbury as someone who could sell him heroin; and that shortly after the sale, appellant was at the scene of the sale. On the basis of this knowledge it was reasonable for Ludd to infer that appellant had probably helped, i. e., acted as an accessory to, Irvin Leatherbury with respect to the sale. The arrest of appellant was therefore lawful, and, accordingly, the search was also. Commonwealth v. Ayers, 239 Pa. Super. 263, 361 A.2d 405 (1976).*fn3