Appeal from judgment of sentence of Court of Common Pleas of Northampton County, June T., 1969, No. 225, in case of Commonwealth of Pennsylvania v. Theodore Pichel.
Dennis J. Monaghan, with him Barrett and Monaghan, for appellant.
Salvador J. Salazar, Assistant District Attorney, with him Charles H. Spaziani, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Jacobs and Van der Voort, JJ., dissent.
[ 229 Pa. Super. Page 104]
This is an appeal from a judgment of sentence for receiving stolen goods. The only issue presented is whether appellant voluntarily and intelligently consented to a police search of his garage.
[ 229 Pa. Super. Page 105]
On May 23, 1969, a marina in Bethlehem Township in Northampton County was burglarized. Missing items included blue boat seats, an impact gun, water skis, life vests, tow ropes, and other boating equipment. On information from a confidential informant, police officers went to appellant's garage on July 12, 1969. With appellant present, the police officers looked into the open garage and noticed two blue boat seats in appellant's boat. Appellant was given Miranda warnings, advised by the police that they wanted to question him about the seats, and, although not placed under arrest, was taken to police headquarters for questioning, where appellant told the police that he had purchased the seats from a stranger.
The police contacted one of the owners of the marina, Richard Schwenk, and allegedly asked appellant whether he would mind if Mr. Schwenk looked at the seats. Appellant replied that it was alright, and that if they belonged to Mr. Schwenk he could have them.
The police, along with appellant and Schwenk, then went to the office of a Justice of the Peace to obtain a search warrant. On the basis of the information supplied by the informant and the police observation of the blue seats in appellant's garage, a search warrant was issued authorizing the police to search the garage and appellant's apartment and to seize articles taken from the marina.
The police officers, appellant, and Mr. Schwenk then proceeded to the garage. When they arrived, the police read the warrant to appellant and searched the garage. The search uncovered various items which Mr. Schwenk identified as stolen from the marina.
The court below held that the search of the garage was consensual because appellant allowed the officers to look into the garage when they first arrived, and, while at the magistrate's office, stated that they ...