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COMMONWEALTH PENNSYLVANIA v. KENNETH CHAMBERLAIN (03/05/84)

submitted: March 5, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
KENNETH CHAMBERLAIN, APPELLANT



No. 02831 Philadelphia 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County at No. 82-05-3034.

COUNSEL

Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Rowley, Popovich and Cercone, JJ.

Author: Popovich

[ 332 Pa. Super. Page 111]

After a non-jury trial in the Court of Common Pleas of Philadelphia County, appellant, Kenneth Chamberlain, was convicted of knowing and intentional possession of a controlled substance. Post-trial motions were denied after which appellant was sentenced to four to eight months in the County Jail. This appeal followed.

The findings of fact upon which the lower court judge relied and which are supported by the record are as follows: On November 20, 1981, at approximately 1:05 a.m., the arresting officers observed an automobile being driven with multiple Motor Vehicle Code violations.*fn1 The car pulled over upon request, and, as the officers approached the car, they noticed the driver attempting to conceal a black handgun. At this time, the driver and his passenger, appellant herein, were ordered to exit the car. The driver was searched for weapons, and the officer found a manilla envelope which contained a small amount of "green weed" in the driver's pocket. The appellant was then searched by the officers. Manilla envelopes similar to the one removed from the driver were removed from the outside pocket of

[ 332 Pa. Super. Page 112]

    appellant's jacket. The police opened the packets and found that they contained what appeared to be controlled substances.

Appellant contends on appeal that the trial court erred in denying his motion to suppress the contents of those manilla envelopes as the drugs found therein were the fruits of an unlawful search by police officers. We affirm.

Our function on review of an order denying a motion to suppress is to determine whether the factual findings of the lower court are supported by the record. 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 context of the record as a whole, remains uncontradicted. If, when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Trenge, 305 Pa. Super. 386, 451 A.2d 701 (1982).

In the instant case, we hold that appellant was initially subjected to a Terry v. Ohio*fn2 "stop and frisk" and was not placed in full custodial arrest until after the drugs had been seized from him. See Commonwealth v. Collini, 264 Pa. Super. 36, 398 A.2d 1044 (1979). However, according to the testimony, after satisfying himself that appellant carried no weapons, the officer returned to the pocket which contained the drugs and proceeded to remove and inspect the contents of the manilla envelopes found therein.*fn3 It was the latter action on the part of the police officer, taken after the search for ...


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