Appeal from judgment of Court of Common Pleas of Bucks County, No. 1048 of 1970, in case of Commonwealth of Pennsylvania v. Edward Cerulla.
S. Richard Klinges, III, for appellant.
Stephen B. Harris, First Assistant District Attorney, and Kenneth G. Biehn, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Jacobs, J. Wright, P. J., would affirm on the opinion of Judge Bodley for the court in banc.
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The facts of this case are not in dispute. At approximately midnight of March 16, 1970, police entered a
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Bucks County apartment which was under the control of defendant Cerulla and, as expected,*fn1 discovered a game of poker in progress. Entry to the apartment was gained by a passkey supplied by the manager of the building; the police had obtained a search warrant prior to entry.
The Commonwealth concedes that the police made no announcement as to presence, identity, or purpose until they had stepped through the door and stated, "Police; this is a raid, everyone stay where they are." Nor was there any indication of attempted flight or destruction of the evidence on the part of the apartment occupants prior to the entrance by police. The failure to announce was explained by a detective on the basis of a belief that the evidence would have been concealed had the presence of the officers been made known. But no reason for this belief is suggested by the Commonwealth other than the fact that evidence of gambling at cards is by its nature easily destructible.
When the police entered, the defendant and various other individuals were seated around a dining-room table. The officers confiscated two decks of playing cards and $223 in currency from the table, as well as 18 decks of cards from the top of a refrigerator in the kitchen. They discovered, but did not seize, an additional $1,660 on the persons of individuals within the apartment. The defendant was arrested and later indicted for allowing an assemblage for gambling and for setting up and maintaining a gambling establishment.
On October 27, 1971, Judge John Justus Bodley of the court below denied defendant's application for suppression
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of evidence resulting from the search. Subsequently, on October 29, 1971, a jury found defendant guilty on both counts of the indictment. The court en banc, by a 7-2 vote, denied defendant's motions in arrest of judgment and for a new trial.*fn2 On appeal, defendant argues that the manner of execution of the search warrant was violative of the Fourth Amendment*fn3 and that evidence ...