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COMMONWEALTH PENNSYLVANIA v. PHILIP JAMES HUGHES (08/16/79)

SUPERIOR COURT OF PENNSYLVANIA


August 16, 1979

COMMONWEALTH OF PENNSYLVANIA
v.
PHILIP JAMES HUGHES, APPELLANT

No. 423 March Term, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas of Dauphin County, Pennsylvania, Criminal Division, at Nos. 1955, 1956 and 1958 of 1975.

COUNSEL

Philip D. Freedman, Assistant Public Defender, Harrisburg, for appellant.

Marion E. MacIntyre, Second Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., concurs in the result. Jacobs, former President Judge, did not participate in the consideration or decision of this case.

Author: Cercone

[ 268 Pa. Super. Page 538]

This is a direct appeal from judgment of sentence of the Court of Common Pleas of Dauphin County, Criminal Division.

[ 268 Pa. Super. Page 539]

On September 24, 1976, a jury found appellant guilty of the statutory crimes of possession with intent to deliver a controlled substance*fn1 and carrying a firearm without a license.*fn2 After post-trial motions were timely filed and denied, this appeal ensued.

Of the four contentions briefed by appellant only two have been properly preserved for appellate review:*fn3 1) whether appellant's warrantless arrest and search of the auto in his custody were based upon probable cause and conducted under exigent circumstances; and, 2) whether in establishing a violation of The Uniform Firearms Act, Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975) mandates the Commonwealth prove beyond a reasonable

[ 268 Pa. Super. Page 540]

    doubt not only that the accused does not have a license for a weapon, but also that the accused does not come within any of the statutory exceptions to the licensure requirement. We find these contentions to be without merit; accordingly, we affirm.

The testimony material to a proper examination of the first assignment of error may be briefly summarized as follows:

At approximately 12:00 A.M. of August 20, 1975, while off duty and at his residence, Officer Robert Kessler of the Pennsylvania State Police received a phone call from a confidential source whom he knew. The source telephoned to inform Officer Kessler of information obtained by the source in an alleged conversation that evening with appellant, Philip Hughes. The informant related that appellant, by automobile, was leaving York, Pennsylvania sometime after midnight destined for the City of Harrisburg, Pennsylvania. The informant further stated appellant would be traveling in a 1965 or 1966 Cadillac, maroon in color with a black top, bearing Pennsylvania Registration Plate 90N-026, and that appellant would be transporting over an ounce of heroin which he intended to distribute upon arrival in Harrisburg. Officer Kessler, believing this tip to be reliable, returned to active duty immediately.

Without obtaining a search or arrest warrant, Officer Kessler decided to establish a surveillance roughly seven or eight miles south of Harrisburg at the Pennsylvania Turnpike where it intersects Interstate 83. Officer Kessler and his partner, Officer Paul Evanko, obtained the assistance of four plainclothes officers and two marked police vehicles to create this surveillance. At approximately 1:15 A.M. the vehicle was observed by Officer Kessler traveling north on Interstate 83. Officer Kessler proceeded to follow the vehicle, and with the aid of his radio directed the other marked police cars to follow. After following the car north for seven or eight miles, Officer Kessler noticed the vehicle exiting at the Second and Paxton Streets ramp. He then requested that the other police vehicles detain the Cadillac.

[ 268 Pa. Super. Page 541]

When such an opportunity arose, Trooper Evanko went to the driver's side of the Cadillac and ordered appellant to open the door. Appellant removed himself from the car at which time Officer Evanko searched his person for weapons, handcuffed him and placed him under arrest for possession of heroin. Appellant was then placed in a police vehicle which had stopped behind the Cadillac. Officer Kessler at this same time was standing at the driver's door. Prior to entering the auto to move it he observed the butt handle of a revolver under the armrest on the front seat. Thereafter, sitting in the driver's seat, he also noticed two small unopened boxes in a trash receptacle on the console. Officer Kessler opened these boxes and discovered packs of a substance which he believed to be a controlled substance.*fn4

Trooper Kessler then drove the auto to the State Police Barracks and, shortly after arrival, additionally charged appellant with possession of the controlled substances discovered in the trash receptacle.*fn5 Shortly thereafter, a district magistrate issued a search warrant. A subsequent search of the trunk of the secured Cadillac revealed a shoulder bag containing cocaine, drug paraphernalia, and appellant's address book. Included in the address book were appellant's driver's license and selective service card.

Appellant initially urges his warrantless arrest, and search of the auto in his custody, could not have been made consistently with the Fourth Amendment as neither were based upon probable cause nor conducted under exigent circumstances. Our analysis, therefore, must initially commence with a determination of whether probable cause existed to arrest appellant or search the auto in his custody.*fn6

[ 268 Pa. Super. Page 542]

In the instant case as probable cause was based upon information received from an informant, two requirements must be met:

"First, in order to assure that the tip is not merely an unsupported rumor, the officer must know the underlying circumstances from which the informer concluded that the suspect participated in the [crime]. Second, in order to reduce the possibility that a tip meeting the first standard is merely a well constructed fabrication, the officer must have some reasonable basis for concluding that the source of the tip was reliable." Betrand Appeal, 451 Pa. 381, 386, 303 A.2d 486, 488 (1973); see, e. g., Commonwealth v. Hawkins, 240 Pa. Super. 56, 362 A.2d 374, 376 (1976).

Appellant contends that neither requirement was met at the suppression hearing as Officer Kessler testified only that informant was "reliable." Appellant's contention would have merit if this were all the suppression judge had before him; however, there was much more. In addition to the officer's assertion of reliability, the judge received into evidence the search warrant which was obtained after appellant's arrest.*fn7 The information in the warrant stated not

[ 268 Pa. Super. Page 543]

    only that the informant was reliable, but also that three prior arrests and a quantity of narcotics and stolen goods were confiscated as a result of information provided by this source. These additional allegations certainly go beyond a mere assertion that prior information was "helpful" in other arrests and investigations, see Commonwealth v. Bailey, 460 Pa. 498, 333 A.2d 883 (1975), and on this record were sufficient to establish that the officer had a reasonable basis for concluding that the informant was reliable.

The search warrant also related that it was on the basis of an alleged conversation with appellant that the informant based his tip that appellant would be traveling to Harrisburg sometime that morning in a particular auto and in possession of more than an ounce of heroin. This information went beyond a mere conclusion that the defendant possessed narcotics, see Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and was not based on outside information or knowledge. Compare, Commonwealth v. Smith, 453 Pa. 326, 309 A.2d 413 (1973) (where the source "found out" that the accused persons had narcotics in their possession). The underlying circumstances for the informant's tip being based upon appellant's admission, the first requirement of Betrand, supra, also was satisfied.*fn8 Thus, despite the desirability of having all the information contained in the affidavit restated by the prosecuting officer at the suppression hearing, we are persuaded that Officer

[ 268 Pa. Super. Page 544]

Kessler's sworn oral testimony supplemented by his written affidavit provided a sufficient evidentiary basis to establish that probable cause was initially present to arrest appellant.*fn9

Appellant next contends the Commonwealth failed to prove beyond a reasonable doubt the essential elements of the firearms offense. The thrust of this argument is Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975) which, appellant contends, mandates the conclusion that the numerous exceptions found in section 6106(b) of The Uniform Firearms Act*fn10 are essential elements in establishing a

[ 268 Pa. Super. Page 545]

    violation of section 6106 of the Act.*fn11 While we have never decided this precise issue, we feel that our decisions subsequent to McNeil and our Supreme Court's decision in Commonwealth v. Bigelow, 484 Pa. 476, 399 A.2d 392 (1979) foreclose such a judgment. In McNeil, it was held that in prosecutions for carrying a firearm without a license pursuant to section 6106 of the Act the Commonwealth had the unshifting burden of proving the accused did not have a license for the firearm at the time of arrest. This conclusion was based upon the "structure of the statute." 461 Pa. at 715, 337 A.2d at 843.

Subsequent to McNeil we decided Commonwealth v. Bigelow, 250 Pa. Super. 330, 378 A.2d 961 (1977) and Commonwealth v. Pope, 250 Pa. Super. 626, 379 A.2d 603 (1977) both of which were affirmed in Commonwealth v. Bigelow, 484 Pa. 476, 399 A.2d 392 (1979). In Bigelow, it was held in a prosecution brought under section 6108 of the Act*fn12 the Commonwealth did not have the affirmative burden of proving as an element of the offense that the accused did not have a license to carry the firearm. The rationale and

[ 268 Pa. Super. Page 546]

    analysis employed in reaching that determination is equally applicable to the case at bar.

Implicit in that analysis was recognition of two familiar doctrines of statutory construction: (1) words and phrases ought to be construed with regard to the accepted rules of grammar and by common usage;*fn13 and, (2) in ascertaining and carrying out the intention of the legislature we will presume that the legislature did not intend a result that is absurd, impossible to execute, or unreasonable.*fn14 Bigelow, 250 Pa. Super. at 332, 378 A.2d at 965; see, e. g., Commonwealth v. Poindexter, 248 Pa. Super. 564, 569, 375 A.2d 384, 387 (1977), rev'd on other grounds, 484 Pa. 476, 399 A.2d 390 (1979).

Applying these principles, we note the language defining the offense in section 6106(a) of the Act clearly, accurately, and fully describes the conduct sought to be punished without resort to subsection (b) of 6106 (Exceptions). Grammatically, section 6106(b) is completely divorced from the more specific provisions of 6106(a) which defines the essential elements of the crime. The "exceptions" constitute a distinct clause which is not an element of the offense, but is rather in the nature of a defense. As a matter of defense these "exceptions" "need not be either plead or proved by the prosecution." Bigelow, 484 Pa. at 483, 399 A.2d at 395 (quoting with approval from United States v. Winnicki, 151 F.2d 56, 58 (7th Cir. 1945); accord, Commonwealth v. Neal, 78 Pa. Super. 216, 219 (1922); Commonwealth v. Stoffan, 228 Pa. Super. 127, 140, 323 A.2d 318, 324 (1974).

Accordingly, the Act envisions the "exceptions" of section 6106(b) as defensive matter, and not as an element of a section 6106 offense, which matter if to be raised must be plead initially by the accused. As the accused in the instant matter did not plead nor prove this matter, and the Commonwealth introduced testimony at trial from the supervisor

[ 268 Pa. Super. Page 547]

    of The Firearms Records Unit of the Pennsylvania State Police which confirmed that the accused did not have a license to carry a firearm at the time of his arrest, the Commonwealth met its burden.

Judgment of sentence affirmed.


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