No. 1018 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Lycoming County, Criminal Division, at No. 77-11, 174.
Robert F. Banks, First Assistant District Attorney, Mercer, for Commonwealth, appellant.
George E. Lepley, Jr., Assistant Public Defender, Williamsport, submitted a brief, on behalf of appellee.
Van der Voort, Watkins and Montgomery, JJ. Montgomery, J., files a dissenting opinion.
[ 264 Pa. Super. Page 555]
This case involves a Commonwealth appeal from an order of the Court of Common Pleas of Lycoming County, Criminal Division, suppressing certain evidence which suppression order destroyed the Commonwealth's case. The defendant is charged with possession of a small amount of marijuana, underage consumption of alcoholic beverages, pedestrian under the influence of alcohol, and disorderly conduct. The
[ 264 Pa. Super. Page 556]
latter three charges are summary offenses, the drug charge is a misdemeanor.
On August 11, 1977 two police officers of the Old Lycoming Township Police Department, a police department of a second-class township, were in uniform and were patrolling Route 15 within the township in a marked police cruiser. While so engaged the officers observed the defendant and a second white male walking along the four-lane highway. Both individuals were walking on the highway itself and were swaying, staggering and bumping into each other as they walked. The officers circled back to get a better look at the individuals when they noticed the defendant yelling at passing vehicles as he was staggering about on the highway. Concluding that the defendant was under the influence the officers activated the cruiser's flashing lights and began to pull up to the defendant and his companion. Upon seeing the police officers the defendant and his cohort ran in opposite directions although they had been ordered to stop several times. One officer pursued the defendant and while doing so heard a crash or thump and, rounding a corner, saw the defendant sprawled on the ground next to a chain link fence. The defendant's glasses were on the ground on the other side of the fence and from this the officer surmised that the defendant had attempted to run through the fence.
The officer proceeded to pick the defendant up from the ground, handcuffed him and informed him that he was being arrested for the offense of pedestrian under the influence a summary offense under the Pennsylvania Motor Vehicle Code.*fn1 The defendant then began swearing at the officer and after repeatedly telling him to desist in such conduct the officer placed defendant under arrest for disorderly conduct, also a summary offense. The defendant continued to struggle with the officer and the officer brought him back to the police cruiser. As he did so he noticed a strong smell of alcohol on defendant's breath. At the police cruiser the officer noticed a bulge in defendant's
[ 264 Pa. Super. Page 557]
left front pants pocket, and believing that the defendant had a knife in his pocket, asked defendant what it was. When defendant said that he didn't know the officer reached into the pocket and removed a pipe which had a fresh odor of marijuana in it. Upon further patting down the defendant a bulge was detected in his right front pocket. When defendant answered that he didn't know what that was either the officer reached into the pocket and removed a plastic bag of marijuana therefrom. Defendant was then charged with possession of marijuana.
After the suppression hearing, during which the court ordered all of the evidence obtained by this series of events ...