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COMMONWEALTH PENNSYLVANIA v. JEFF GUINTHER (09/04/81)

filed: September 4, 1981.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
JEFF GUINTHER



No. 2480 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Lehigh County, Trial Division, Criminal Section, No. 871 of 1979.

COUNSEL

Jerry A. Snyder, Assistant District Attorney, Allentown, for Commonwealth, appellant.

Howard N. Stark, Allentown, for appellee.

Wickersham, Watkins and Lipez, JJ.

Author: Lipez

[ 290 Pa. Super. Page 443]

This is a Commonwealth appeal from a pretrial suppression order,*fn1 in a prosecution on two counts of possession of a controlled substance and two counts of possession with intent to deliver a controlled substance. Being unable to resolve the issues on this record, we vacate the suppression order, and remand for further proceedings.*fn2

The Commonwealth's evidence at the suppression hearing consisted of testimony by two police officers, Pesola and Williams. Officer Pesola testified that he had seen a juvenile about five feet within the edge of the grounds of an unenclosed municipal park in Bethlehem at 9:30 p. m. on July 22, 1979. The park had a posted closing time of 9:00 p. m., and a Bethlehem ordinance provided penalties for being in a municipal park after closing time.

[ 290 Pa. Super. Page 444]

Officer Pesola saw the juvenile walk out of the park and get into defendant's car. Defendant started to drive away. Officer Pesola shone a spotlight on the car. Defendant stopped, and got out of the car. Officer Pesola walked past him and approached the car, where he saw some green vegetable matter on the passenger side floor in a plastic bag. The juvenile passenger was trying to stuff the bag under the seat. Officer Pesola examined the bag's contents, determined it was marijuana, and arrested the juvenile passenger.

Officer Williams, who had accompanied Officer Pesola in a separate car, approached defendant, and asked if defendant had any more marijuana in the trunk of his car. Defendant said he did not, and Officer Williams asked if defendant would mind opening the trunk so he could check. Defendant opened the trunk and picked up a bag, which he tossed toward the forward portion of the trunk. Officer Williams retrieved the bag and found marijuana inside. Defendant was arrested. Officer Pesola inspected an eyeglass case, which was also removed from the car trunk, and discovered 25 tranxene tablets.

Defendant moved to suppress the marijuana and tranxene, as well as the statements he had made immediately following his arrest. The Commonwealth contended in the court below, as it does here, that: (1) Officer Pesola had a right to stop defendant's car in order to issue a citation to defendant's juvenile passenger, who had violated the Bethlehem ordinance by being in the park after closing; and (2) defendant consented to the search of his trunk.

At the conclusion of the suppression hearing, the court below did not make findings of fact and conclusions of law, as required by Pennsylvania Rule of Criminal Procedure 323(i). The reasons for the suppression order are stated only in the opinion filed by the court below after this appeal was taken from the order. In its opinion, the court concluded that Officer Pesola had no right to stop defendant's car, ...


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