No. 599 Philadelphia, 1983, Appeal from the Order Entered February 22, 1983 in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 82-02-0354; Misc 82-008124.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Montemuro, Cercone and Hester, JJ. Hester, J., filed a dissenting statement.
[ 336 Pa. Super. Page 254]
On February 3, 1982, appellant was arrested and charged with possession of a controlled substance. Immediately prior to trial in the Municipal Court of Philadelphia, a motion to suppress was litigated and denied. Appellant was then found guilty and sentenced to pay a fine of $150.00 plus costs. Appellant thereafter petitioned the Court of Common Pleas of Philadelphia County for a writ of certiorari asserting that his motion to suppress had been improperly denied. The writ of certiorari was denied and this appeal ensued. We reverse.
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 are to consider only the evidence of the prosecution's witnesses and so much of the evidence
[ 336 Pa. Super. Page 255]
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, 389, 451 A.2d 701, 703 (1982). Viewed in light of these principles, the record reveals the following.
On February 3, 1982, police officer Roy Wright and his partner responded to a radio call of a disturbance at the Parker Hotel in Philadelphia. When they arrived, Wright remained in the foyer where appellant was standing while his partner proceeded into the lobby to speak with the manager. Officer Wright noticed that appellant was wearing a jacket with bulging lower pockets into which he continuously moved his hands in and out. When questioned as to his purpose for being in the foyer, appellant responded that he was waiting for a narcotics officer. During the questioning, Wright's partner informed him that appellant had refused the manager's request to leave the premises. After appellant obeyed Wright's order to remove his hands from his pockets, the officer then reached directly into appellant's pockets to check for weapons. The officer found a vial of pills, a pack of cigarettes and a large wad of tissue. Officer Wright then frisked appellant's outer clothing for weapons. No weapons were found and the pills -- subsequently analyzed and determined to be controlled substances -- provided the evidence for appellant's arrest*fn1 and conviction.
In the seminal case of Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), the United States Supreme Court recognized that society's interest in detecting and preventing crime permitted a law enforcement officer to stop and question an individual ...