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COMMONWEALTH v. MAIONE (04/03/74)

decided: April 3, 1974.

COMMONWEALTH
v.
MAIONE, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Washington County, May T., 1970, No. 325, in case of Commonwealth of Pennsylvania v. Patsy Maione.

COUNSEL

Sanford S. Finder, for appellant.

Fred J. Sentner, Assistant District Attorney, with him Roger J. Ecker, Assistant District Attorney, and Jess D. Costa, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Spaeth, J.

Author: Spaeth

[ 227 Pa. Super. Page 241]

Appellant contends that evidence obtained by an illegal seizure and search of his automobile was used to convict him of failure to stop at the scene of an accident and reveal his identity, in violation of The Vehicle Code, Act of April 29, 1959, P. L. 58, § 1027(a), (b), 75 P.S. § 1027(a), (b).

The testimony produced by the Commonwealth at the hearing on appellant's motion to suppress may be summarized as follows. At approximately 12:35 a.m. on January 16, 1970, Lt. Lawrence Celaschi of the Charleroi Police Department while on routine patrol witnessed a hit-and-run accident. The car involved knocked down a pedestrian and sped past the officer "at a high rate of speed." The officer was able to tell, however, that it was a "1963 Chevy, dark color;" at the time he had a 1964 Chevrolet very much like it. He radioed for an ambulance and started in pursuit but "got stuck in the ice and snow" and radioed for "the other police car to come up." The ambulance and other police car arrived at about the same time, and once the victim was enroute to the hospital, Celaschi and his fellow officer went in search of the hit-and-run car. At approximately 1 a.m., or twenty-five minutes after the accident, they spotted a "1963 Chevy Coupe, color dark gray," standing in the parking lot of The Maples, a restaurant between a half and three quarters

[ 227 Pa. Super. Page 242]

    of a mile from the scene of the accident. Celaschi got out of the police car and inspected the Chevrolet's exterior. Its right front fender had been slightly damaged and "the headlight had a slight crack." By relaying the registration over the radio, Celaschi learned that the owner was a Patsy Maione. He went into The Maples and asked for Patsy Maione. The bartender pointed out appellant. When Celaschi asked how long appellant had been there, the bartender replied that it had been approximately twenty-five or thirty minutes. Celaschi approached appellant, told him about the accident, and asked if he would mind driving to the police station for questioning. Appellant agreed and accompanied by Celaschi drove his car to the station and parked it in the borough garage. Celaschi and appellant talked for about fifteen minutes but appellant denied any knowledge of the accident. Celaschi then attempted to inspect appellant's car but insufficient lighting in the garage and "other calls" prevented him from conducting a thorough inspection. In the meantime appellant had fallen asleep. When he awakened at approximately 2:45 a.m., Celaschi permitted him to leave but told him that his car was being impounded.

At approximately 6:15 a.m. Lt. William R. Verno reported for duty and was instructed by Celaschi to inspect appellant's car, especially the right-hand side, for evidence that might link it to the hit-and-run accident. Verno called a magistrate but was told he did not need a search warrant. Using a magnifying glass, Verno found some fibers on the jagged edge of the damaged right front fender, near the headlight; he could not see the fibers with his naked eye. After photographing the fender, he removed the jagged fender edge and took it, along with some paint scrappings from the fender and the coat and trousers that the accident victim had been wearing, to the Pennsylvania State Police Laboratory in Greensburg. In all the inspection

[ 227 Pa. Super. Page 243]

    of the car took from 7 a.m. until approximately 9 or 9:30 a.m.

On May 14, 1970, Verno received a report from the laboratory that the fibers found on the jagged fender edge matched fibers from the victim's trousers. On the basis of this ...


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