Appeal, No. 171, April T., 1963, from order of Court of Quarter Sessions of Washington County, Sept. T., 1962, No. 322, in case of Commonwealth v. Lester Samolsky. Motion to quash refused; order affirmed.
Michael A. Hanna, Disttict Attorney, for Commonwealth, appellant.
Howard E. Goldfarb, for appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 202 Pa. Super. Page 407]
OPINION BY MONTGOMERY, J.
This appeal is by the Commonwealth from an order suppressing evidence and quashing an information charging the defendant-appellee, Lester Samolsky, with
[ 202 Pa. Super. Page 408]
being a common gambler, setting up a place of distribution of gambling equipment, and possessing gambling equipment, to wit: punch boards, tip sheets, and bags commonly called fish bowls. The evidence suppressed was found in the basement of a building at 52 West Chestnut Street in Washington, Washington County, Pennsylvania, where a search had been made with a search warrant. The sufficiency of the warrant is questioned.
The application for the search warrant was made by Robert K. Gordon, Constable, who alleged that gambling devices were in the custody of John Doe in the building occupied by J. Samolsky & Son, located at 52 West Chestnut Street, Washington, Pennsylvania. The warrant described the premises to be searched in identical language: "... I Searched the within described premises on July 21, A.D. 1962 and found gambling equipment in the basement thereof. Basement is also known as Washington Candy Co."
The equipment, so seized, was claimed by Lester Samolsky, who sought to have it suppressed as evidence against him for the reason that the warrant did not authorize the search of the area in which it was found, which area was alleged to be occupied exclusively by the Washington Candy Company, although admittedly within the building known as 52 West Chestnut Street, Washington, Pennsylvania. The petition further alleges that J. Samolsky & Son, a retail business selling men's wear and shoes, occupies the first floor of the building and the northerly two thirds of the basement floor, with an entrance on West Chestnut Street, whereas the Washington Candy Company has its entrance on West Pine Avenue and occupies no portion of the building except the southerly one third of the basement. It further alleges that neither of the occupants store merchandise in the area of the other or otherwise use the other occupant's portion of the building.
[ 202 Pa. Super. Page 409]
After hearing, the lower court found that "... Lester Samolsky is a partner in the firm of the Washington Candy Company, that the partnership occupies the rear portion only of the Samolsky Building, this portion facing and opening only on West Pine Avenue in the said City of Washington ... that neither the defendant nor his partner had any interest in the clothing and shoe business conducted by J. Samolsky & Son at 52 West Chestnut Street and that the firm of J. Samolsky & Son was not involved in the alleged violations ... that no permission had ...