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COMMONWEALTH v. TASCO ET AL. (04/03/74)

decided: April 3, 1974.

COMMONWEALTH
v.
TASCO ET AL., APPELLANTS



Appeals from judgment of sentence of Court of Common Pleas of Berks County, March T., 1969, No. 257, in case of Commonwealth of Pennsylvania v. Peter Tasco and Lester Weinman.

COUNSEL

Gene D. Cohen, with him Gustine J. Pelagatti, for appellants.

Grant E. Wesner, Deputy District Attorney, with him Robert L. VanHoove, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaeth, J. Watkins, P. J., dissents. Wright, P. J., and Spaulding, J., did not participate in the consideration or decision of this case.

Author: Spaeth

[ 227 Pa. Super. Page 145]

Appellants were arrested on September 10, 1967, while participating in a card game at a farm in Berks County. They were convicted at a jury trial of the

[ 227 Pa. Super. Page 146]

    crime of establishing a gambling place.*fn1 On this appeal they contend that the search warrant that led to their arrest and conviction was constitutionally defective and that therefore the items seized pursuant to the warrant should not have been admitted as evidence against them. We agree.*fn2

The transcript of the suppression hearing discloses the following facts. On the evening of September 10, 1967, Corporal Holloway of the Pennsylvania State Police applied to Lawrence Palmer, the Alderman of the 19th Ward of Reading, for a search warrant. After being sworn, the corporal gave the alderman certain information, which will be described later in this opinion. The alderman thereupon prepared an affidavit for a search warrant, which the corporal signed. The affidavit recited that it was based on "[I]nformation received from State Police investigators-County Detectives-Confidential police informant used in the past and proven to be reliable and trustworthy, from observation by affiant-State Police and County Detectives from September 10, 1967 at 4:00 p.m. to September 10, 1967 at 8:00 p.m. and upon personal investigation by affiant conducted from September 5th, 1967 to September 10th, 1967. . . ." The affidavit went on to identify a particular building, which it said was being used "for gambling purposes by one Mr. Samuel Damiano, Et Al." On the strength of the affidavit and the corporal's sworn oral statement the alderman issued a search warrant, which the corporal took to the suspect building. Upon looking through the window he saw

[ 227 Pa. Super. Page 147]

    each of appellants acting at various times as the dealer in a game of acey-deucey. He executed the warrant and arrested all the participants in the game, including appellants and Damiano. A blanket used as a table cover, several sets of dice, several decks of cards, and some money were seized as evidence.

In denying the motion to suppress the evidence, the hearing judge found that "the testimony would appear to substantiate the fact that Santo [ sic ] Damiano was the owner of the premises" searched (Finding of Fact No. 4), that Damiano was not then contesting the validity of the warrant,*fn3 and that appellants, "while they may have been upon the premises, upon the occasion of the search, do not appear to have been, in any way, owners of the establishment, and as far as this proceeding is concerned, would appear to be strangers to the property, and have no interest in the ownership or control of the said real estate" (Finding of Fact No. 8). From these findings the judge concluded that "[n]o legal reason exists for suppressing the evidence. . . ." (Conclusion of Law No. 3).*fn4

On this record, two questions are presented: whether appellants had standing to challenge the warrant; and if they did, ...


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