Samuel Dash, Asst. Dist. Atty., Michael von Moschzisker, First Asst. Dist. Atty., and Richardson Dilworth, Dist. Atty., Philadelphia, for appellant.
George T. Guarnieri, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Reno, Dithrich, Ross and Wright, JJ.
[ 173 Pa. Super. Page 134]
Appellee was arrested on a warrant charging a violation of The Penal Code of June 24, 1939, P.L. 872, § 607, 18 P.S. § 4607, which defines pool-selling and book-making. His premises were searched under a concededly defective search warrant and an Armstrong racing sheet 'and four torn sheets of paper bearing pencil markings thereon' were seized. Appellee was arraigned before a magistrate and entered bail for appearance at the next term of the quarter sessions court. Before an indictment was found against him, he petitioned the court below for an order quashing the search warrant and for a discharge. The court properly held that, having entered bail, appellee was not entitled to a discharge, and refused that prayer of the petition. The search warrant was held illegal and as to that the court entered the following order: 'Accordingly, the petition to quash the search warrant is granted and the papers seized thereunder are suppressed as evidence and ordered returned to the defendant.' (Italics added.)
The Commonwealth appealed and challenged only the italicized part of the order. It acknowledges that the search warrant was illegally issued and the papers seized under it have been returned to appellee, agreeably to the order. It will not attempt to secure possession of them by a new search warrant. But does intend to offer secondary evidence of the contents of the papers at the trial of the case and it apprehends that such testimony may be rejected upon the basis of the order of suppression. The order is definitive in
[ 173 Pa. Super. Page 135]
its nature and the Commonwealth was entitled to an appeal. Com. v. Loesel, 155 Pa. Super. 461, 38 A.2d 523.
The seized papers are conceded by appellee to 'contain memoranda of bets made'. In his brief, he states further: 'The Record does not indicate whether these papers be memoranda of bets received from others by defendant or bets made by the defendant himself. The Record doesn't show whose records they are, whether they be in defendant's handwriting, whether they be records made by someone other than the defendant, whether they be records made by someone for or on behalf of the defendant.' Without evidence of the nature of the papers we cannot determine their character, and the questions raised by appellee's brief will be resolved at the trial before secondary evidence of the contents of the papers is received.
But, there can be no doubt concerning the admissibility of secondary evidence. Com. v. Hubbard, 65 Pa. Super. 213, expressly rules that, while a defendant in a criminal trial cannot be required to produce an incriminating paper in his possession, the Commonwealth may introduce secondary evidence of its contents. Caveat: see Com. v. Valeroso, 273 Pa. 213, 116 A. 828.
Nor will the fact of their illegal seizure exclude evidence of their contents. In Com. v. Agoston, 364 Pa. 464, 484, 72 A.2d 575, 585, the Supreme Court, speaking through Maxey, C. J., and quoting 8 Wigmore on Evidence, § 2183, flatly held: '[I]t has long been established that the admissibility of evidence is not affected by the illegality of the means through which the party has been enabled to obtain the evidence', citing Com. v. Connolly, 290 Pa. 181, 138 A. 682, and ...