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COMMONWEALTH v. CALVARESE (11/15/62)

November 15, 1962

COMMONWEALTH
v.
CALVARESE, APPELLANT.



Appeal, No. 289, Oct. T., 1962, from judgment of Court of Quarter Sessions of Philadelphia County, June T., 1961, No. 41, in case of Commonwealth of Pennsylvania v. Domenic Calvarese, also known at D.J. Calvarese. Judgment affirmed.

COUNSEL

Charles L. Guerin, Jr., for appellant.

Burton Satzberg, Assistant District Attorney, with him Arlen Specter, Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Ervin

[ 199 Pa. Super. Page 320]

OPINION BY ERVIN, J.

Three police officers, who had received information that the appellant was engaged in the operation of an

[ 199 Pa. Super. Page 321]

    illegal lottery, went to the vicinity of the Daily News Building, at 23rd and Arch Streets in Philadelphia, at 11:20 a.m. on October 25, 1960. They observed the appellant enter the building, whereupon two officers took a position by the entrance of the building and a third officer positioned himself near the appellant's car. The appellant came out of the building approximately 15 minutes after he entered and was, at this time, stopped by the two officers, who were in plain clothes. After the police identified themselves the appellant, without saying a word, ran toward his car but the third officer stopped him before he got there. The appellant fell to the sidewalk and one of the police officers testified that he feigned unconsciousness. He was then helped to his car, which was located on the opposite side of the street. The police officers then patted him down to make sure he had no weapons. Two of the officers got in the car with the appellant and proceeded to the Ninth District Police headquarters. The third officer followed in another car.

After the car had arrived at the district parking lot, the appellant, who was sitting between the two officers, took something from his mouth and dropped it to the floor of the car. One of the officers retrieved it from the floor and it proved to be "two slips of paper rolled in tiny cylinder form." The slips of paper contained 387 straight and boxed numbers plays and repeats. Two of the officers testified that the slips of paper were picked up from the floor of the car after appellant had dropped them.

The appellant testified that when they got to the parking lot they got out of the car and started toward the police station and he then said: "As I turned around, I saw him [an officer] stooping to the ground and pick something up. He said, 'Here it is.'" The appellant denied that he had ever seen these two papers before and denied all connection with them.

[ 199 Pa. Super. Page 322]

The defendant waived a jury trial and was tried by the court below sitting without a jury. At the trial the slips were introduced into evidence against the defendant, over his objection, and formed the basis on which he was found guilty. After overruling the defendant's ...


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