No. 816 April Term 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division, No. CC 7704912
Bruce A. Carsia, Pittsburgh, for appellant.
Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Cercone, President Judge, and Montgomery and Lipez, JJ.
[ 280 Pa. Super. Page 207]
Appellant was convicted of possession of heroin*fn1 in a non-jury trial. His only contention is that the court below erred in denying his motion to suppress the heroin introduced against him at trial. Because we agree with appellant's argument that the heroin was obtained in an unlawful search of appellant's person, we reverse and grant a new trial.
Our function on review is to determine whether the record supports the suppression court's factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we consider only the evidence of the prosecution's witnesses and so much of the evidence for the defense as, fairly read in the
[ 280 Pa. Super. Page 208]
context of the record as a whole, remains uncontradicted. Commonwealth v. Kichline, 468 Pa. 265, 280-81, 361 A.2d 282, 290 (1976).*fn2
A police officer's testimony was the only evidence at the suppression hearing. According to this testimony, the officer and his partner drove to the 600 block of Herron Avenue in Pittsburgh at about 4:40 p. m. on June 22, 1977, to investigate an anonymous telephone tip that several people were selling dope in that area. The officer had in that neighborhood in the past made narcotics arrests which had resulted in convictions. The weather that afternoon was clear and sunny.
Among a number of people on the block, the officer saw appellant and another black male making a "sort of exchange," in which each handed something to the other,
[ 280 Pa. Super. Page 209]
although the officer could not see what was being exchanged. The officer and his partner, both in uniform, pulled their marked police vehicle over to the curb, got out and approached appellant and his companion. The companion fled up the street, and the partner chased him. Appellant made a dash toward the entrance of a nearby bar. The testifying officer grabbed appellant, who then put his hand to his mouth. The officer grabbed appellant by the throat, until he spit out six small plastic ...