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COMMONWEALTH v. EVANS (09/15/67)

decided: September 15, 1967.

COMMONWEALTH, APPELLANT,
v.
EVANS



Appeal from order of Court of Quarter Sessions of Westmoreland County, April T., 1961, Nos. 64 to 67, inclusive, in case of Commonwealth of Pennsylvania v. Jack Richard Evans.

COUNSEL

Joseph M. Loughran, District Attorney, with him John K. Best and John N. Scales, Assistant District Attorneys, for Commonwealth, appellant.

Edgar P. Herrington, Jr., for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Watkins, J.

Author: Watkins

[ 210 Pa. Super. Page 456]

This is an appeal by the Commonwealth from an order of the Court of Quarter Sessions of Westmoreland County suppressing the evidence obtained under a search warrant. The Commonwealth's appeal is taken under the authority of Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), which permits such an appeal when the Commonwealth can no longer proceed with the prosecution after the evidence involved is suppressed.

On the evening of January 4, 1966, at 10:30 p.m., an alarm, which had been installed in the home of Mrs. Richard Paul, by the Bell Telephone Company, was triggered. The purpose of the installation of the alarm by the company was to alert those in the Paul home that someone was tampering with the coin box in the public telephone booth located almost directly across from the Paul home. The Pauls were then to alert the company and the police of apparent tampering.

As a result of the alarm, Mrs. Paul immediately called the Township Police Station. She informed the police that she and her children were observing the booth from a window in the home. They observed a man leaving the booth and getting into a station wagon which was dark in color -- wine-colored or maroon -- either a Pontiac or an Oldsmobile. They observed the man leave the booth and get into the station wagon, which had a luggage rack on top, and pull into traffic on Route 30 travelling in a westerly direction.

The police, when notified by the Pauls of what they had observed, radioed two patrol cars giving them the

[ 210 Pa. Super. Page 457]

    necessary information. As a result of the information, a 1965 Oldsmobile was stopped about one and one-half miles from the telephone booth. It was a maroon Oldsmobile station wagon with a luggage rack on top.

The officer did not search the car, although he was able to observe a bag of silver coins on the floor of the car. The appellee agreed to accompany the officer to the police station but no arrest was made. The car was parked upon arrival and was not searched until a search warrant was obtained from a Township Justice of the Peace. Upon searching the car numerous articles were found including a leather bag containing two pennies, $6.34 in nickels, $22.30 in dimes, $9.50 in quarters and $11 in halves; a claw hammer; 7 pairs of assorted pliers; 1 speedy screwdriver with 4 screwdriver bits; 5 assorted screwdrivers; assorted wrenches and other articles of a suspicious nature in view of the alleged charge -- 47 itemized articles in all.

The search warrant in question was issued by Justice of the Peace Richard Hershberger upon the oath and affidavit of Sgt. Baker of the Township police. The affidavit reads as follows:

"Commonwealth of ...


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