*1 you you If have funds and desired to THE COURT: any courses, take either one these or of these you expected courses, to use those funds would be you attorney; hire if have no funds an at- to an charge. torney you free of would be furnished to you that? Do understand DEFENDANT: Yes, THE sir. your
THE desire? COURT: What Your I haven’t had an Honor, DEFENSE COUNSEL: request opportunity to discuss this with him. We continuance. sentencing period for a
THE will defer COURT: We days.” of seven presented in situation was Commonwealth
A similar Superior Dimitris, Pa. Ct. post-trial to file (1974). There, the defendant failed judge case, present the trial failed but, motions, as to 1123(c). result, we refused comply As a with Rule voluntarily knowingly and had find that the defendant we post-trial Instead, right his to file motions. waived remedy be to would equitable decided that the most comply it to with to allow to the court below remand post-trial file motions the defendant to rule to allow present case pro if he so desired. Since nunc tunc disposi- Dimitris, the same make we identical to is almost tion here. procedendo. awith is remanded
The case Appellant. v. Getz, Commonwealth *2 September Submitted 11, 1974. Before Watkins, J., P. Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ.
J ohn Lawler, P. Public Defender, appellant. for C. Daniel Higgins, Assistant Attorney, District and James Marsh, F. Attorney, District Commonwealth, for appellee.
Opinion by Spaeth, J., September 22, 1975: Appellant judge was convicted a sitting without jury burglary a larceny. and Motions a new trial judgment and in arrest of denied, filed and appellant was years imprisonment sentenced to to 15 7% burglary on the and in addition conviction, was ordered pay fine and make restitution. $100.00 Sentence *3 suspended larceny on the conviction.
The 1972, facts of the case follow: On November 4, police an Easton message officer received a that an anonymous “suspicious police caller had informed the of a person loading in the area of the cases of Star Cafe whiskey into a the officer arrived U-Haul van.” When open on the scene he found the van with the side doors occupant “approxi- and a female in the front He saw seat. mately up the liquor inside 15 18 cases of stacked liquor There control on stickers were numbers truck.... appellant emerged from the the stuck onto cases.” When Appellant van, said the about the that officer asked cases. storage the ones for while sealed the unsealed ones were purchased. for liquor The officer asked contained he had responded he purchase appellant that had receipt, and nearby the to a apartment. Appellant led officer one in his floor. apartment the second stairway up and to his open several cases apartment held The door to the liquor inside cases of liquor saw other and the officer 472 apartment. Upon reaching top appel- stairs,
lant fight turned and ensued, kicked the officer twice. A parties which took apartment, into the kitchen of the onto the second landing, floor back and down the stairs. During fight a second officer arrived, and two appellant police officers arrested for assault on a officer. After and the first officer were taken to a hospital, appellant’s apartment, a warrantless search of stairway, and the U-Haul van was conducted and 32 liquor seized, building cases of 14 from within the and 18 from the it van. When was discovered that a State burglarized, appellant Store had been was arrested for burglary larceny.
Appellant
propriety
question
does not
of his arrest
assault;
question
he does
the search and seizure.
police
justifiably
aWhen
officer
at
sees
scene
plain view,
contraband
his observation is not a search
meaning
within the
of the Fourth
Thus,
Amendment.
no
required.
warrant
Davenport,
Commonwealth v.
453
235,
(1972);
Rota,
Pa.
seized from within the The Commonwealth con- pursuant tends that this seizure was to a search incident *4 ato lawful arrest and as such did not require a warrant. made,
“When an arrest is it is reasonable for the arresting person officer to search the arrested in order any weapons might to remove that the to latter seek
473 use in to escape. order resist effect his arrest or Other safety wise, might the endangered, officer’s well be addition, entirely the arrest itself In it frustrated. is arresting reasonable the officer to search for and any person seize evidence on the in order to arrestee’s prevent its concealment or destruction. And the area grab into might which an to arrestee reach order weapon evidentiary must, course, a or items of be governed gun like or in a A on a table a rule. drawer in front of is can be as one who arrested dangerous arresting to the officer one concealed as ample clothing person the There is of the arrested. justification, therefore, of the arrestee’s for a search person control’— and the area 'within his immediate construing within phrase that mean the area from might gain possession weapon of a or de which he California, v. 395 U.S. evidence.” Chimel structible 752, (1969). 762-63 apartment,1 present search, case, at least of
In it could be considered exceeded these limitations. While arrest, it was “substantially contemporaneous” with the arrest,” vicinity of the to the immediate not “confined stairway, appellant foot was arrested at since place on the took the search ground while level, 215, 218, Harris, 429 Pa. second floor. Vale that believe We A.2d Vale, controlling. In (1970), is Louisiana, 399 U.S. street, been arrested defendant had after the war- without a his house interior of police searched the that Supreme held Court rant. The States United rights. fourth amendment defendant’s search violated present case. reasoning applicable to the same stairway was whether the record tell from 1. cannot We expectation privacy. it If place had an as to which However, standing this not, arise. appellant’s would issue of an argued. issue has not been
Nevertheless,
Nothing
we shall not
turns
reverse.
upon the exact
of
number
cases stolen.
Guilt
estab
through
lished
liquor
seal on the
cases. Each seal
bore the
delivery
individual state store
number
date.
open
plain proof
18 cases seized from the
van were
guilt;
of
building
14 cases seized within the
merely
evidence,
cumulative
the admission of which was
harmless. Commonwealth
Ravenell,
v.
Cercone, J., concurs in result. by
Concurring Opinion Price, J.: majority in the reached but I concur result agree specifically not note that I do with dis- must or conclusion reached as to the seizure cussion building. would hold the from I cases seized within proper. I believe have been This seizure of all Cases to had not arrested to be so since first officer apart- seeing plain prior view 14 cases by appellant for the invited the officer was where ment, receipt. showing purchase purpose of basis judgment of sentence affirm the I would of the evidence. all concurring join Jacobs, J., this Watkins, P.J., and opinion. Keysock, Appellant.
Commonwealth