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COMMONWEALTH v. SOYCHAK (03/24/72)

decided: March 24, 1972.

COMMONWEALTH, APPELLANT,
v.
SOYCHAK



Appeals from order of Court of Common Pleas of Westmoreland County, July T., 1970, Nos. 555, 565 to 568, inclusive, in case of Commonwealth of Pennsylvania v. Paul F. Soychak, Joseph Paul Billy, Norman Thorpe, Thomas Fred Thorpe and Arthur DeFelice.

COUNSEL

Louis H. Ceraso, Assistant District Attorney, and John N. Scales, District Attorney, for Commonwealth, appellant.

Richard H. Galloway, for appellees.

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

Author: Jacobs

[ 221 Pa. Super. Page 459]

The present appeal concerns the admissibility of gambling evidence obtained from a police surveillance and raid of defendants' premises. The evidence was suppressed by the lower court following a hearing and the Commonwealth now appeals.

The chain of circumstances leading to the present appeal began with a tip from a confidential informant. The informant advised the police that gambling operations were being conducted at the ABC Billiard Club. Acting on this information, police officers placed the club under surveillance for an hour, from 11:00 p.m. to midnight, during which time they observed various males entering and leaving the premises. The officers

[ 221 Pa. Super. Page 460]

    later went to the rear of the building in which the club is located. The club occupies the second floor, which only extends over the front half of the first floor. Consequently, one of the officers was able to climb onto the first-floor roof over the rear half of the building and thereby obtain access to a louvered exhaust fan serving the club's bathroom. Peering through the louvers in the fan he observed a dice game being conducted in the club's billiard room adjoining the bathroom. The fan louvers were blown open by the fan sufficiently far to afford the officer a view of the bathroom and the adjoining billiard room, but he also lifted the louvers with his hand to get a better view.

On the basis of the above facts a search warrant was obtained. The affidavit supporting the search warrant included the following information: (1) a gambling establishment was alleged to be in operation on the described premises of the ABC Billiard Club; acquisition of this information was attributed to a confidential informant; (2) the "stickman" and "doorman" were identified, also through the statements of the confidential informant; (3) the information from the informant was said to be based on the informant's own personal knowledge, he having observed gambling, and actually gambled, on the premises in question; (4) the information from the informant was alleged to have proved reliable in the past; two convictions and three pending prosecutions for gambling, all the result of the informant's information, were set out in detail; (5) the results of the one-hour police surveillance were described; during this one-hour period various males were said to have entered the premises and two males from the premises were seen setting garbage on the street; (6) finally, the affidavit described the police officer's observation through the exhaust fan of gambling in the club's billiard room.

[ 221 Pa. Super. Page 461]

After obtaining the search warrant, the police officers proceeded to execute it. While two officers again observed the billiard room through the exhaust fan, other officers entered the building through the front door. As they began climbing the steps leading to the club, they noticed a man standing in the club's doorway at the top of the stairs. When the policemen identified themselves the man slammed the door. The police officers then identified themselves again and began beating on the door with axes and sledgehammers. After about ten minutes one of the defendants opened the door and the police officers entered.

During this time the troopers who were still on the rear roof observed the defendants through the exhaust fan. One of the troopers testified at the suppression hearing that he watched the defendants running around the room while the police were trying to open the front door. One of the defendants put billiard balls on the table on which they had been playing dice. Another defendant ran into the bathroom and flushed dice down the commode.

The items which the police confiscated as a result of the raid were a deck of cards, two curtain rods with tape on both ends, the exhaust fan, and the two reinforced doors that barred access to the club. This evidence, along with the testimony concerning the observations through the exhaust fan, was suppressed by the lower court. For the reasons that follow we affirm the lower court order with regard to the initial exhaust fan ...


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