No. 1878 PHILADELPHIA, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Delaware County, No. 2038-78A.
Howard Gallagher, Assistant Public Defender, Media, for appellant.
Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
Hester, Cavanaugh and Beck, JJ. Beck, J., files a dissenting opinion.
[ 298 Pa. Super. Page 175]
Officer Kruczaj, a Chester County police officer, was summoned via the radio dispatch to investigate the presence of the appellant in the women's dormitory at Widener College. The appellant entered the dormitory without authority, invitation or privilege. The officer did not, at first, arrest the appellant because no serious criminal activity seemed to be afoot. Instead, he agreed to drive the appellant
[ 298 Pa. Super. Page 176]
to his home, especially since the latter appeared intoxicated and had no vehicle nearby. Before allowing the appellant to sit in the patrol car, Officer Kruczaj patted his outer clothing. The pat-down disclosed a small plastic vial containing pills and a hypodermic syringe. As a result, the appellant was tried and convicted for violating the provisions of The Controlled Substance, Drug, Device and Cosmetic Act. Pa.Stat.Ann. title 35, § 780-113. This appeal was filed from his sentence of 18 months' probation.
The appellant asserts, first, that he was not tried within 180 days of the filing of criminal charges; therefore, the provisions of Pa.R.Crim.P. 1100(a)(2) were violated. The appellant was free on bail pending disposition of the criminal charges. He failed to appear for trial. Subsection (d)(1) of Rule 1100 excludes that time period from the 180-day calculation during which the defendant renders himself unavailable at any stage of the proceedings. By excluding the period of time during which the appellant was unavailable, there was no violation of the 180-day rule.
The appellant's second argument is rejected as well. He maintains that the vial and syringe were taken from him in violation of the search and seizure principles of the Fourth Amendment. Conversely, Officer Kruczaj wanted to make certain that the appellant possessed no dangerous weapons before permitting him to enter the back seat of the patrol car.
Warrantless searches are permissible where the officer observes the suspicious nature of the individual's behavior and reasonably concludes that the individual may be contemplating the commission of a crime and may be carrying a dangerous weapon. Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969). However, a person's behavior must arouse more than suspicion before a warrantless search not incident to a lawful arrest is permitted. Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970). The appellant was found by Officer Kruczaj in the rear of the girl's dormitory at Widener College in a stupefied condition. It is inconceivable
[ 298 Pa. Super. Page 177]
that the appellant went to the dormitory for the purpose of conducting a gentlemanly visit; his presence was rightfully feared by the young women and justifiably viewed by Officer Kruczaj with caution and apprehension. Appellant had no cause or reason to be in that building. The mere act of arriving at the dormitory without invitation and in a dazed condition was alarming enough and provided sufficient cause to reasonably infer that criminal activity was afoot. Moreover, we do not believe that the law prohibits the warrantless search of an individual whose actions were stopped short of all criminal behavior and who requested transportation in a police ...