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COMMONWEALTH v. DEMICHEL (04/22/71)

decided: April 22, 1971.

COMMONWEALTH
v.
DEMICHEL, APPELLANT



Appeal from order of Superior Court, No. 1237, Oct. T., 1969, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1967, No. 1535, in case of Commonwealth of Pennsylvania v. Adam DeMichel.

COUNSEL

Lenard H. Sigal, for appellant.

Paul R. Michel, Assistant District Attorney, with him James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen concurs in the result. Mr. Chief Justice Bell took no part in the consideration or decision of this case. Mr. Justice Cohen took no part in the decision of this case. Dissenting Opinion by Mr. Justice Pomeroy. Mr. Justice Jones joins in this dissenting opinion.

Author: Roberts

[ 442 Pa. Page 556]

Upon the basis of various lottery paraphernalia seized pursuant to a search warrant and introduced into evidence at trial, appellant Adam DeMichel was convicted of setting up and maintaining an illegal lottery and sentenced to undergo imprisonment for three to twelve months and to pay a fine of five hundred dollars plus costs. In this appeal from the judgment of sentence, appellant asserts that the evidence that led to his conviction was the fruit of an illegally executed search warrant. Upon reviewing the record we must agree.

Appellant was arrested on January 14, 1967, during a police search of his home at 707 Sears Street in Philadelphia. Also present at the time were appellant's wife and daughter. Upon initial entry into the house, the police observed appellant at a kitchen sink attempting to destroy rice paper, and in the course of the ensuing search they found and seized other sheets of rice paper containing several thousand lottery bets, other blank sheets of rice paper, lists of names, adding machine tape, and other lottery paraphernalia.

Prior to trial appellant filed a timely motion to suppress these items, and an evidentiary hearing was held on March 4, 1968. From testimony elicited at that hearing it appeared that five police officers armed with

[ 442 Pa. Page 557]

    a search warrant arrived at the front of appellant's two-story row house at 12:40 p.m. on January 14, 1967. All were dressed in plain clothes, and one of their number, Officer Daniel Creden, approached the front door alone carrying a cardboard box in an attempt to create the false impression of a deliveryman.

Corporal Frank Hall, another member of the raiding party, testified as follows concerning the execution of the search warrant: "Q. Did . . . [appellant] admit you to the premises? A. No. We had to gain entrance. Q. How? A. We broke the door down. Q. With or without prior warning? A. With. . . . Q. What type of warning did you give to the occupants of the house before breaking in the door? A. I told him we were police officers, we had a warrant. Q. How much time elapsed between the time you said that and when you broke in the door, approximately? A. Approximately ten or fifteen seconds." Upon cross-examination by appellant's counsel, Hall restated his version of the entry into the house but did not reaffirm that he personally gave any warnings to the occupants.*fn1

At the conclusion of the hearing, appellant's counsel argued that the affidavit supporting the issuance of the search warrant was defective and that the police's method of entry into appellant's home was illegal. The hearing judge ...


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