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COMMONWEALTH PENNSYLVANIA v. MARLIN H. BOWERMASTER (04/12/82)

filed: April 12, 1982.

COMMONWEALTH OF PENNSYLVANIA,
v.
MARLIN H. BOWERMASTER, APPELLANT



No. 316 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Cumberland County at No. 325 Criminal 1979.

COUNSEL

Taylor P. Andrews, Public Defender, Carlisle, for appellant.

J. Michael Eakin, Assistant District Attorney, Carlisle, for Commonwealth, appellee.

Spaeth, Hester and Cavanaugh, JJ. Spaeth, J., files concurring and dissenting opinion.

Author: Cavanaugh

[ 297 Pa. Super. Page 447]

Appellant Marlin H. Bowermaster was arrested and charged with possession with intent to deliver marijuana. His motion to suppress the evidence was denied and appellant was found guilty by a jury of the crime charged. Following denial of his post-trial motions, appellant was sentenced to a term of imprisonment. This appeal followed. We find no merit in the claims raised by appellant and therefore we affirm.

Appellant first claims that the trial court erred in refusing to suppress evidence seized from the car in which he was riding immediately prior to his arrest. He contends that there was no probable cause to stop the vehicle and that any evidence seized from the car must, therefore, be suppressed. The facts leading up to appellant's arrest are as follows.

Several days before appellant's arrest, a police informant told Pennsylvania State Police Officers Wynn and Helwig that he had observed marijuana at a farmhouse occupied by one Harry Bevan and that Bevan had told him that he expected a large shipment of marijuana within the next couple of days. The farmhouse was put under surveillance approximately thirty-six to forty hours prior to the time of the arrest. During the period of surveillance, numerous vehicles were observed arriving and departing the premises, staying for periods ranging from five to twenty minutes. A silver Pontiac Firebird visited the farmhouse several times. When this vehicle last departed the farmhouse on March 9, 1979, Officers Wynn and Helwig followed in an unmarked car. The silver Firebird stopped about one half mile from the farmhouse and picked up appellant, even though appellant had not signaled to this car nor to either of the two

[ 297 Pa. Super. Page 448]

    preceding vehicles that he wanted a ride. A registration check disclosed that the silver Firebird was registered to a Donald Bevan, later identified as the driver of the car and the brother of the occupant of the farmhouse.

Officers Wynn and Helwig, from a distance of approximately two car lengths behind the Firebird, observed appellant and Bevan engage in animated conversation and hand slapping, and then saw appellant reach to the back seat for a brown paper bag which he brought up to the front seat and placed in front of him. Shortly thereafter, what appeared to be a white rolled cigarette blew out the right front window. A few moments later appellant and Bevan were seen passing an object back and forth and placing it to their lips while holding it between their thumbs and forefingers. Five minutes later Bevan held what appeared to be a charred cigarette outside the window, rubbing it between his fingers so that the contents scattered in the wind. Based on years of experience with drug investigations, Officer Wynn concluded that the occupants of the car were smoking marijuana.

Shortly thereafter, the Firebird was stopped by officers of the Lower Allen Township Police Department acting upon a radio request from Officers Wynn and Helwig. The Lower Allen Police Officers noticed two paper bags in the area directly in front of the passenger seat which had been occupied by appellant. The bags were open and the officers were able to see the contents, which they identified as marijuana. The bags were removed and appellant and Bevan were placed under arrest.

Appellant claims that the 4.1 pounds of marijuana seized from the car should have been suppressed. Both of the arresting officers testified that they could identify the contents of the bags from outside of the vehicle and therefore, as long as they were not acting improperly in stopping the vehicle, the evidence is admissible under the plain view doctrine. Harris v. U. S., 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

[ 297 Pa. Super. Page 449]

It was not necessary for the arresting officers to have personal knowledge of the information constituting probable cause to stop the silver Firebird. They were merely responding to a radio request for assistance. If Officers Wynn and Helwig, who requested the stop, had sufficient information to constitute probable cause, then the stop and the subsequent seizure of marijuana were proper. Commonwealth v. Kenney, 449 Pa. 562, 297 A.2d 794 (1972).

The Pennsylvania Supreme Court has stated that:

     probable cause exists if the facts and circumstances which are within the knowledge of the officer at the time of arrest, and of which he has reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in the belief that the suspect has committed or is committing a crime.

Commonwealth v. Jones, 478 Pa. 172, 177, 386 A.2d 495, 497 (1978). This court stated in Commonwealth v. Tolbert, 235 Pa. Super. 227, 230, 341 A.2d 198, 200 (1975) that "when we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element."

Appellant alleges that in examining the factors relevant to a determination of whether there was probable cause we must ignore the tip from the informant since it does not meet the two-pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Aguilar held that where probable cause is based on information supplied by an informant, it must be shown that the informant himself is reliable and that the information he offers has a reliable basis. We feel that the test was satisfied in this case. Officer Wynn testified that information received from the same informant had resulted in three prior drug convictions. The informant's statement that there was marijuana present at the farmhouse was based on personal observation and therefore has a reliable basis.

Even if the Aguilar test was not met, we would not have to ignore the informant's tip in this case. The Supreme

[ 297 Pa. Super. Page 450]

Court held in Spinelli v. U. S., 393 U.S. 410, 418, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969) that even if an informant's tip is not sufficient, standing alone, to provide the basis for a finding of probable cause, it can be considered along with other factors in determining whether there was probable cause.

We believe that the informant's tip and the high rate of vehicle activity at the farmhouse, including several visits by the silver Firebird registered to Donald Bevan, in conjunction with the personal observations of Officers Wynn and Helwig of the actions of Donald Bevan and appellant were sufficient to warrant a belief that appellant was committing a crime. Therefore, the trial court did not err in refusing to suppress the evidence seized from the car.

Appellant next argues that the trial court erred when it denied his motion for a mistrial. The motion was made following a remark made by Donald Bevan during the presentation of the Commonwealth's case-in-chief. Appellant claims that the concluding remark in the following exchange created an inference in the minds of the jurors of prior criminal activity on the part of appellant and was therefore grounds for a mistrial.

Q. Were you questioned by the police?

A. I was, sir.

Q. Did you initially tell them what you have told us here today at first?

A. No sir, I told them that it was mine and that Mr. Bowermaster was, in fact, hitchhiking.

Q. Why did you tell them that?

A. Well, this is my first time and I figured that, you know, well, I just figured they would be easier on me than they would on him basically.

N.T. 49 (emphasis added).

The "controlling question" in cases raising this issue "is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal ...


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