# Commonwealth v. Sojourner

> Superior Court of Pennsylvania · August 21, 1978 · 268 Pa. Super. 472

URL: https://www.frixlaw.com/law-library/cases/9750866

## Case

- **Full name:** COMMONWEALTH of Pennsylvania v. Eugene SOJOURNER, Appellant
- **Court:** Superior Court of Pennsylvania
- **Decided:** August 21, 1978
- **Citations:** 268 Pa. Super. 472; 408 A.2d 1100
- **Precedential status:** Published
- **Opinion:** Dissent by Voort
- **Judges:** Spaeth, Van Voort, Watkins, Jacobs, Hoffman, Cercone, Price, Van Voort Spaeth, Van Voort Jacobs
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Modified on other grounds by Commonwealth v. Sojourner, 268 Pa. Super. 488 (1979).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9750866

## Opinion text

VAN der VOORT, Judge,
dissenting:
The appellant, Eugene Sojourner, appeals to this Court following conviction in a jury trial, denial of post-trial motions, and sentencing on charges of possession and possession with intent to deliver controlled substances. See Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64, § 13(a)(16) and (30), as amended, 35 P.S. § 780-113(a)(16) and (30). He raises several arguments on this appeal.
The record shows that on'December 12, 1975, two motorcycle officers noticed a car-being driven during night hours without tail lights. Appellant was the operator of the vehicle and was signalled by the officers to pull to the curb and stop. Appellant did so but immediately left the auto and began to walk away as the officers were getting off of their motorcycles. When one of the officers called out to him to stop, the appellant suddenly began to run in the direction of some nearby buildings. One of the officers followed on his motorcycle, and the chase covered several blocks. During the course of the pursuit, the officer saw appellant discard two foil packets. After eventually apprehending the appellant, the officers retrieved the packets and found them to each contain twenty-five glassine envelopes, *485 all holding a substance later proved to be heroin. Appellant, when caught, was in possession of the keys to the car which police had stopped, as well as the owners card for the same vehicle.
The appellant first contends that the drugs should have been suppressed as evidence because officers had no probable cause to arrest him and his act of discarding the heroin was a “forced abandonment.” He cites Commonwealth v. Jeffries, 454 Pa. 320 , 311 A.2d 914 (1973), to support this argument. I find appellant’s reliance on Jeffries to be misplaced and his contention of no probable cause to be without merit.
In Jeffries , the appellant had done no more than walk more quickly as he was observed by police. It was held that such conduct did not, standing alone, provide probable cause for the police conduct. In the instant case, the appellant’s car was stopped for proper police investigation. The lack of rear lights was in violation of the then effective provisions of the Vehicle Code. See Act of Nov. 28, 1973, P.L. 344, No. 119, § 1 (now set forth in the Act of June 17, 1976, P.L. 162, No. 81, § 1, 75 Pa.C.S. § 4303.) Under these circumstances the police were clearly authorized to stop the appellant’s car. See Act of July 16, 1970, P.L. 487, No. 166, § 1, 75 P.S. § 1221. 1 Appellant’s sudden abandonment of his auto, flight from the scene and failure to heed police requests to stop, established sufficient facts to warrant the officers’ belief that criminal activity may have been afoot. 2 The chase which ensued and appellant’s attempted disposal of what appeared to be a packet of drugs, render ridiculous appellant’s claim that police lacked probable cause for his arrest. Commonwealth v. Hunter, 240 Pa.Super. 23 , 360 A.2d 702 (1976). I find no merit in appellant’s “forced abandonment” theory.
*486 Appellant next contends that there was insufficient evidence to prove any intent to deliver the heroin. In view of the quantity of drugs seized, and testimony by an officer, with experience in the field, that possession of such a volume indicated that it was possessed for sale, the jury had sufficient evidence upon which it could properly conclude appellant had an intent to deliver. Our Court has reached such a conclusion in other cases involving analogous facts and quantities of drugs. Commonwealth v. Harris, 241 Pa.Super. 7 , 359 A.2d 407 (1976); Commonwealth v. Wright, 234 Pa.Super. 83 , 339 A.2d 103 (1975); Commonwealth v. Brown, 232 Pa.Super. 463 , 335 A.2d 782 (1975).
It is next argued that the trial court erred in instructing the jury that the Commonwealth’s burden of proving that appellant was not licensed to possess a controlled substance could be satisfied by proof of appellant’s flight and discarding of the narcotics. While the appellant took an exception to the announced intent of the court to charge in this manner prior to the charge, a review of the record shows that he did not include., this challenge to the charge in written post-trial motions. The lack of license portion of the charge was the subject of some discussion in appellant’s brief in support of post-trial motions. In its opinion however, the lower court does not discuss this license issue in relationship to its charge, but rather addresses the additional argument of appellant that the evidence was not sufficient to convict (on the intent to deliver charge) in the absence of evidence of non-licensure. The appellant does not pursue the sufficiency issue as to non-licensure on appeal. Under these circumstances, where the argument on the jury charge was not included in written post-trial motions and was not considered by the lower court in its opinion, I would hold that it was waived for purposes of appellate review. See Commonwealth v. Perillo, 474 Pa. 63, 65-66 , 376 A.2d 635, 636-637 (fn. 2) (1977).
Next, appellant argues that the prosecuting attorney deliberately attempted to prejudice the jury by asking a defense witness why the appellant would need the services of a *487 free public defender at trial if he was a businessman having ownership of a record store. This issue like the prior one, was briefly mentioned in appellant’s brief in support of post-trial motions, but was not preserved in written post-trial motions by appellant, and was not discussed by the lower court in its extensive opinion in this case. Thus, I would find that this issue was also waived for purposes of appellate review. Commonwealth v. Perillo, supra.
Last, appellant raises a second claim of alleged prosecutorial misconduct. In this regard he relates that one of the spectators at trial, dressed in rather ostentatious clothing, engaged at one time in conduct described by appellant’s counsel as “. . . nodding, scratching his arm, shaking and making physical movements of the head back and forth.” The spectator was later discovered to be a police officer associated with the narcotics unit to which some of the prosecution police witnesses were assigned. Counsel for appellant requested a mistrial, suggesting that the spectator appeared to be a drug user and arguing that the jurors might have concluded he was associated with the appellant, perhaps as a buyer of drugs.
In evaluating the lower court’s denial of the mistrial motion, we must be mindful that the trial court is granted discretion in the conduct of a trial in general, as well as with regard to decisions on mistrial requests based upon alleged conduct of trial spectators. Commonwealth v. Evans, 465 Pa. 12 , 348 A.2d 92 (1975); Commonwealth v. Garrison, 443 Pa. 220 , 279 A.2d 750 (1971); Commonwealth v. Flood, 302 Pa. 190, 197 , 153 A.2d 152, 154 (1930). I can discern no abuse of that discretion in the instant circumstances. The trial judge noted at the time of the motion (and out of the jury’s hearing) that he had observed that the jury’s attention had been “riveted” on the testifying witness during the entire time when the spectator conduct was alleged to have occurred. Moreover, the trial judge noted that he had looked around the courtroom while the conduct was supposedly taking place and had not noticed any of the gestures suggested by defense counsel. In response to defense requests *488 that the spectator stand to announce his identity as a police officer or that the jury be polled regarding the incident, the trial judge refused on the basis that he did not want to exacerbate any problem. The court, in its charge, directed the jurors to consider only the evidence they had heard in testimony. In my consideration of this issue, it must be recognized that this single incident allegedly occurred in a trial which covered two days, produced a transcript of over two hundred pages, and featured strong evidence of the appellant’s guilt on the narcotics charges against him. In light of all of these factors, I cannot conclude that the lower court abused its discretion in the denial of the mistrial motion raised by appellant.
I would affirm the judgment of sentence.
JACOBS, President Judge, joins in this dissenting opinion.
. The relevant provisions of the currently effective vehicle law may be found in the Act of June 17, 1976, P.L. 162, Act No. 81, as amended, 75 Pa.C.S. § 6308.
. See Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9750866. Public record. Not legal advice.