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COMMONWEALTH v. BOWERS (11/13/70)

decided: November 13, 1970.

COMMONWEALTH, APPELLANT,
v.
BOWERS



Appeal from order of Court of Common Pleas of Schuylkill County, Nov. T., 1969, Nos. 933, 933A, and 933B, in case of Commonwealth v. Joseph F. Bowers.

COUNSEL

Paris J. DeSantis, Assistant District Attorney, and Richard B. Russell, District Attorney, for Commonwealth, appellant.

Peter Krehel, for appellee.

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

Author: Spaulding

[ 217 Pa. Super. Page 318]

This is an appeal by the Commonwealth from an order of the Court of Common Pleas of Schuylkill County, Criminal Division, on June 24, 1970, suppressing certain evidence.

On September 25, 1969, Officer Daniel Lesko of the Frackville Borough Police Department obtained a search warrant from Justice of the Peace Frank Gallo, covering the premises of appellee, for a radio allegedly stolen from the home of a Mr. and Mrs. Tatushko, of Frackville. Lesko enlisted the aid of additional law enforcement officers including Trooper John Morrow of the Pennsylvania State Police. Pursuant to the warrant, the officers entered appellee's home. After an extensive search, the radio was discovered in the last room checked. Officer Lesko directed appellee to accompany him to Squire Gallo's office for identification of the radio. When Mrs. Bowers learned that her husband would likely not be home for dinner, she requested one of the officers to move two packages of frozen chicken from a table to the refrigerator. Officers Won

[ 217 Pa. Super. Page 319]

    and Zuber did as requested and while doing so, the overly-stuffed freezer section spilled open, revealing packages of frozen crab and shrimp as well as sirloin steaks. The officers then accompanied Bowers to the Squire's office for identification of the radio by Mrs. Tatushko. She could not identify it.

Officers Won, Zuber and Morrow returned to the Bowers' residence with a warrant listing the items previously seen in the refrigerator.*fn1 While seizing these articles Trooper Morrow noticed a Zenith 23-inch portable television. He had been previously assigned to investigate a second area country club robbery (not related to the Tatushko or to the Fountain Springs Club incidents) and was aware that a Zenith 23-inch portable was one of the missing items. The serial number was on a list of stolen property which he carried with him. To confirm his belief that the television was in fact stolen from the country club, he picked up the set to determine whether the serial number coincided with the one on the robbery list. He was unable to locate the number and called a local television repairman who removed the back from the rear of the set revealing the serial number which matched the stolen set. Officer Morrow returned to the Squire's office and obtained another warrant, this time for the Zenith television.

The Commonwealth contends that the lower court should be reversed as to the order holding the television inadmissible. We disagree.

Stoner v. California, 376 U.S. 483, 486, 84 S. Ct. 889, 891 (1964) states, "[A] search . . . without a warrant . . . 'can survive ...


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