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COMMONWEALTH v. FIORINI (11/13/63)

November 13, 1963

COMMONWEALTH
v.
FIORINI, APPELLANT.



Appeal, No. 100, Oct. T., 1963, from judgment of Court of Quarter Sessions of Berks County, March T., 1962, No. 229, in case of Commonwealth of Pennsylvania v. Joseph V. Fiorini. Judgment affirmed.

COUNSEL

Alan I. Baskin, with him David Sharman, Jr., for appellant.

Peter F. Cianci, First Assistant District Attorney, with him Frederick O. Brubaker, District Attorney, for Commonwealth, appellee.

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

Author: Montgomery

[ 202 Pa. Super. Page 90]

OPINION BY MONTGOMERY, J.

The appellant-defendant, Joseph V. Fiorini, was found guilty by a jury and sentenced for being concerned in the operation of a lottery in violation of section 601 of The Penal Code, Act of June 24, 1939, P.L.

[ 202 Pa. Super. Page 91872]

, 18 P.S. 4601. Appellant's arrest resulted from the search of a building, known as 872 North Eighth Street in the City of Reading, made by the police with a search warrant. The search uncovered large quantities of paraphernalia commonly used in the operation of a lottery business. Appellant came upon the premises during the raid; and a Federal Special Tax Stamp issued to him was publicly displayed on the wall of the room immediately adjacent to the entrance of the building. The title to the property was recorded in appellant's name, the deed to him in describing the property referred to it as 872 North Eighth Street. The search warrant*fn1 had been issued by an alderman of the City of Reading on the oath of Charles S. Wade, Chief of Police, Reading Police Department.

Prior to the trial appellant filed a motion to quash the search warrant and to suppress the evidence secured thereunder, alleging that the warrant had been improperly issued and that the search covered portions of the premises beyond the scope of the warrant. The decision on this motion, after argument, was reserved for the trial judge who, at the time of trial, refused the motion. Appellant now questions the propriety of both the procedure and that action of the court.

Although Berks County had no established rule of procedure to follow at this time, its action in referring the motion relating to the search warrant to the trial judge was the same as subsequently prescribed by Pa. R. Crim. P. 2001(h) in situations where the court of a prosecuting county receives such an application

[ 202 Pa. Super. Page 92]

    for relief during trial. In such instances the trial court is directed to submit to the jury disputed issues of fact, "... as the case of disputed confessions in criminal court". Although the court of prosecution is authorized under Rule 2001(e) to dispose of such motions, timely filed before trial, without submitting disputed issues of fact to a jury, we cannot, in the present case, see any prejudice to appellant by the procedure employed in his case. Generally litigants alleged prejudice because they have been denied the benefit of a jury's consideration of their contentions. Furthermore, appellant made no objection to such procedure at the time of trial. In fact, he renewed his motion to suppress at that time; and his counsel conducted the cross-examination of ...


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