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COMMONWEALTH v. MCALEESE (04/16/69)

decided: April 16, 1969.

COMMONWEALTH, APPELLANT,
v.
MCALEESE



Appeals from order of Criminal Courts of Chester County, Jan. T., 1968, Nos. 112 and 115, in cases of Commonwealth of Pennsylvania v. Dale McAleese, and Same v. Anthony P. Pitcherella.

COUNSEL

William H. Lamb, Assistant District Attorney, with him Norman J. Pine, District Attorney, for Commonwealth, appellant.

Samuel J. Halpren, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Wright, P. J. Hoffman and Spaulding, JJ., concur in the result.

Author: Wright

[ 214 Pa. Super. Page 229]

On March 12, 1968, Dale McAleese and Anthony P. Pitcherella were indicted by the Grand Jury of Chester County on Bills Nos. 112 and 115 January Term 1968, respectively, charging the establishment of a gambling place as proscribed by Section 605 of The Penal Code. Act of June 24, 1939, P. L. 872, 18 P.S. 4605. On May 29, 1968, the defendants filed a joint pretrial application for the suppression of all evidence acquired by police officers in a raid, February 8, 1968, at 627 Belmont Street in the City of Coatesville. The officers were in possession of a search warrant which named Mary L. Fields as occupant of the premises. After a hearing, June 3, 1968, the court below filed an opinion and order, July 22, 1968, suppressing all evidence seized or obtained after the premises had been entered. On August 15, 1968, appeals to the Superior Court were filed by the Commonwealth. On October 24, 1968, the court below filed a supplemental opinion "as to the extent" of the suppression order.*fn1

The court below reasoned that the execution of the search warrant by the officers "was violative of the Fourth Amendment" because the premises had been entered forcibly without announcement of purpose. The precise circumstances of the entry therefore become critical to our decision. The factual situation appears in the following excerpt from the testimony of Thomas G. Frame, Chief of County Detectives: "Q. Proceed; you were just getting out of your car? A. We walked up the alley and in the yard at 627 Belmont, there was lights on in the kitchen. I walked on to the back porch. Detective Sharpe and Sergeant Bullock went

[ 214 Pa. Super. Page 230]

    to the side -- it is a double house -- they went to the side where there is an alleyway and stood under the kitchen window. I walked to the porch. The Venetian blinds were on a downward slant. I looked in the Venetian blind and I observed a card game in progress. I could see Mr. Julius Gordon with his back to me; the rest of the players I could not see their faces; I could only see to the shoulders. The next player I could see to the waist and then the one up at the end, I could just see his hands on the table. I observed one full hand of stud poker. The man furthest from me won that pot. There was approximately ten to twenty separate American bills, currency. I couldn't tell the denominations. The fellow pulled the pot in. I observed Mr. Gordon then lean back on his chair, take his money, which was in front of him, and start counting it. I observed four to five one hundred dollar bills he ripped off, and then I turned my attention to the game again. The man to my extreme right started to deal the cards. The telephone rang. At that time the defendant, which I did not know at that time, Mr. Pitcherella, walked over, answered the telephone. Q. Do you see him here today? A. He is sitting at the end of defense counsel table. He picked up the phone and there was a very short conversation, approximately five to six seconds. He said, 'Okay,' and hung up the phone; and immediately looked out the rear view -- rear view door; held the blind up. I stood back up against the wall. Then put the blind down. I walked over and knocked on the door. He lifted the blind up and looked right at me. And I said, 'It's the police; open up'. Q. Will you say that again, now? You walked over to the door -- A. I -- yes, I walked back to the door. Q. Okay, and you knocked? A. I knocked on the door. He opened the blind and looked at me. Q. What did you say? A. I said, 'It's the police; open up'. He then

[ 214 Pa. Super. Page 231]

    dropped the blind down and yelled, 'It's the cops'. I then observed the men jump up from the table. I then grabbed the door and tried to pull it open, and I kept yelling, 'Open up'. Q. How many times would you say you yelled that? A. Approximately three times, that I can remember. Q. Okay. A. At that time Patrolman Lamar, behind me, started to yell, 'Open up: it's the police'; I then put my foot through the storm door. At that time I hurt my ankle, so I stepped back and I ordered Patrolman -- or asked Patrolman Lamar to finish kicking the door. He kicked it about four times and then the defendant came over and said, 'Okay, I'll open it'. And he came over and opened the door. By the Court: Q. Which defendant? A. Pitcherella . . . Q. Now, to back up just a minute, Detective Frame, you said that Detective Sharpe read the search warrant to Mary Fields, is that right? A. Yes, sir. Q. And then you said you told her to go upstairs and get dressed, did you? A. Yes, sir . . . Q. And then you say McAleese said what -- what did he say to you again? A. He said, 'She has nothing to do with this; this is my game; I rent this house'. Q. And then you said Mr. Pitcherella said -- The Court: Mr. Pitcherella said, 'Yes, he rents it from me; I own it'. Right? The Witness: Yes, sir."

The principal authority cited by the court below is Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795, and that same case is relied upon by both sides in the present appeal. Mr. Justice O'Brien therein pronounced what must be accepted as the controlling rule governing the execution of search warrants in this Commonwealth, as follows (italics supplied): "An announcement of both authority and purpose is required before a door can be broken down, ...


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