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COMMONWEALTH PENNSYLVANIA v. GERALD KELLY (12/21/79)

decided: December 21, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
GERALD KELLY, APPELLANT



No. 793 JANUARY TERM, 1977, Appeal from the Order of the Superior Court affirming the Order of the Court of Common Pleas of Philadelphia County, Misc. 76-00-1809, Denying a Writ of Certiorari to the Municipal Court of Philadelphia County, MC75-11-816.

COUNSEL

John W. Packel, Leonard Sosnov, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Division, Philadelphia, Suzanne McDonough, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case.

Author: Flaherty

[ 487 Pa. Page 176]

OPINION OF THE COURT

Appellant, Gerald Kelly, was convicted in Philadelphia Municipal Court for possession of a controlled substance. Common Pleas Court denied certiorari and the Superior Court affirmed the conviction.*fn1 This case comes to the Supreme Court on grant of allocatur.

The facts relevant to this appeal are the following:

Two police officers were in a patrol wagon in Philadelphia at about 9:00 p. m. when they spotted an expired inspection sticker on an automobile. Appellant, driver of the automobile with the expired sticker complied with a signal from the officers to pull over and stop. Appellant got out of his automobile, approached the officer who had been driving the patrol wagon, and handed over an operator's license and the vehicle's registration card. At the same time, the second officer approached the passenger side of appellant's automobile as appellant's two (2) passengers were getting out. Immediately after the passengers exited, this police officer, holding a flashlight outside the automobile, beamed light onto the front seat purportedly to assure himself that weapons were not present -- such a weapons check being his

[ 487 Pa. Page 177]

    routine practice. The light illuminated a small amber prescription vial, approximately three or four inches long and one and a half inches in diameter with a white top, near the center of the seat. Seeing that the vial appeared to contain aluminum foil packets, the officer reached in through the open window and seized it. The vial, having a drugstore label with appellant's name thereon, was immediately found to contain nine (9) small aluminum packets. Appellant was arrested for possession of a controlled substance after these packets were shown to the officer who had been examining appellant's license and vehicle registration. Appellant was then frisked, with nothing being recovered, and taken to a police station where a further search of appellant's clothing uncovered three (3) more packets. Eight of the total of twelve seized packets were subjected to chemical analysis. All eight contained methamphetamine, a controlled drug. At trial, suppression of the physical evidence was denied.

Appellant's first contention is that judgment should be arrested and discharge should be granted on the ground that there was a variance between the complaint charging possession of a controlled substance, erroneously alleged to be heroin, and proof at trial that the controlled substance was methamphetamine. Counsel stipulated at trial that the packets contained methamphetamine. Appellant's defense at trial was based entirely on a motion to suppress the evidence.*fn2 Every complaint shall contain a "summary of the facts sufficient to advise the defendant of the nature of the offense charged . . ." Pa.R.Crim.P. 132. Possession of either ...


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