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COMMONWEALTH PENNSYLVANIA v. DALE E. FIORE (09/26/80)

filed: September 26, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
DALE E. FIORE, APPELLANT



No. 1116 April Term, 1978, Appeal from Judgment of Sentence in the Court of Common Pleas of Allegheny County, Criminal Division, No. CC7703121A.

COUNSEL

John W. Murtaugh, Pittsburgh, for appellant.

Kathryn Simpson, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Hester, Montgomery and Lipez, JJ.

Author: Hester

[ 281 Pa. Super. Page 2]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Allegheny County. The procedural history and facts relevant to the issue on appeal are as follows:

On January 20, 1977, at approximately 1:50 a. m., Officer Robert Reed of the City of Pittsburgh, observed an automobile with four occupants parked in a lighted area of South Aiken and Harriett Streets. It was legally parked and the motor was off. Because there had been "over 100 burglaries" in that general area over the past several months, and there was a wind chill factor of approximately twenty degrees below zero, he decided to "check the vehicle." He did not have information that a burglary had recently occurred or that this vehicle was involved in a crime. As Reed quickly approached the vehicle, the three occupants of the

[ 281 Pa. Super. Page 3]

    front seat appeared "very nervous", and the driver, Mr. Harris, leaned over just as the officer arrived at the car. With the aid of a flashlight and the illumination from a nearby street light, the officer observed that there was money all over the floor of the vehicle, which Harris had placed on the floor and attempted to shove under the seat. Officer Reed also noticed movement by the appellant. He "got a glimpse of a white plastic bag just making a quick motion going down between the seat . . . [a plastic bag with a white substance] . . . -like a powder or a hard substance." Reed described it as a right hand movement to place it between the door and the seat of the vehicle. Upon observing this motion, Reed "though possibly it was a drug transaction taking place." The officer asked Harris for identification and to exit the vehicle, which he did. Reed's partner stood by the passenger door where appellant was seated until the arrival of a back-up unit. At that time, Officer Reed asked appellant to step out of the car. Reed "possibly could have opened the door." Once the door was open, he saw the plastic bag laying between the door and the seat and confiscated it. He then placed appellant and the occupants of the car formally under arrest and seized the money totaling $415.00 which was on the floor on the driver's side. Following the denial of his motion to suppress, appellant proceeded to trial non-jury. He was found guilty of possession and possession with intent to deliver cocaine pursuant to 35 Pa.C.S.A. ยง 780-113(a)(16) and (30). Appellant's post trial motions were denied and he was sentenced to 11 1/2-23 months incarceration. This timely appeal followed.

Appellant contends the court below erred in failing to grant his motion to suppress all items seized because he was arrested without probable cause. The Commonwealth first argues that the issue is waived because of a failure to properly preserve it for appeal relying upon Commonwealth v. Austin, 484 Pa. 56, 398 A.2d 941 (1979). Because we find that case inapposite, we will reach the merits of the issue raised by the appellant.

With regard to the suppression court's refusal to exclude all items seized at the time of the arrest:

[ 281 Pa. Super. Page 4]

"[o]ur 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 ...


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