Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, May T., 1969, No. 364, in case of Commonwealth of Pennsylvania v. Augustine Ferrone.
Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellant.
Harry J. Gruener, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J.
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Appellee was arrested and indicted on charges of poolselling and bookmaking. On July 3, 1969, he filed an application to suppress all evidence which police officers had obtained from a search of his home. The main contention in this application was that there was
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no probable cause to justify issuance of the search warrant pursuant to which the search was made.
Trial on the charges took place on October 23, 1969. The first portion of this proceeding was directed toward establishing whether there was probable cause for issuing the warrant. Following testimony, Judge Silvestri reserved decision on the suppression issue*fn1 and suggested that testimony be taken on the merits of the case so that the police officers who were then present in court would not have to come back at a later time. Both the district attorney and the defense attorney agreed with this suggestion and the trial proceeded to conclusion.
During the course of the trial, the Commonwealth attempted to place into evidence testimony regarding the contents of various phone conversations which took place between the police officers and unidentified third persons. These conversations occurred when the police answered the defendant's telephone while they were searching his home pursuant to the warrant. Defendant's attorney objected to this testimony on the ground it was unlawfully obtained; however, the court permitted the officers to testify regarding the telephone conversations, requested briefs be submitted on the question, and reserved determination as to whether the testimony should be stricken.*fn2 The remainder of the evidence entered against appellee consisted of plain, unmarked, rice paper and some sports-pool sheets with written figures upon them.
On December 4, 1969, Judge Silvestri filed an opinion and order. In the opinion he sustained the validity of the search warrant, and the admissibility of the
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physical evidence which was seized, i.e., the rice paper and pool sheets. However, he suppressed the evidence regarding the phone calls, holding that the calls were intercepted in violation of the federal statute entitled "Wire Interception and Interception of Oral Communications." 18 U.S.C.A. §§ 2510-2520 (1970). He then found appellee not guilty because the remainder of the evidence was ...