Appeals from order of Court of Common Pleas, Trial Division, of Philadelphia, M. C. Nos. 72-10-2504 and 2505, in case of Commonwealth of Pennsylvania v. Anthony DeLuca and Julia DeLuca.
David Richman, Assistant District Attorney, with him Michael Henry, Assistant District Attorney, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellant.
Joseph P. Zawrotny, for appellees.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Dissenting Opinion by Hoffman, J.
[ 230 Pa. Super. Page 392]
On October 24, 1972, at approximately 1:20 p.m., Officer Francis Selgrath of the Philadelphia Police Department executed a search and seizure warrant inside the premises of Anna Silver, in Philadelphia. During the course of this search, which was instituted to confiscate work tallies used in an illegal numbers-writing operation, Officer Selgrath answered the Silver's telephone and informed callers, who asked for "Ann" and then placed numbers and horse bets, that Ann Silver was not present. One such caller identified herself as "Sparky" and placed 24 straight plays, worth $107.00. Officer Selgrath asked "Sparky" if she wanted Anna to return her call, and upon receiving an affirmative answer, wrote down "Sparky's" telephone number as she recited it. The number given was De-2-6851.
Officer Selgrath immediately contacted the Bell Telephone Company to determine the location of, and listed occupants for, that number. The investigation revealed that Julia and Anthony DeLuca were assigned
[ 230 Pa. Super. Page 393]
that telephone number, and that the phone was located at 6912 Hegerman Street. Officer Selgrath then cross-checked this information against the voter registration lists and confirmed the address provided by Bell Telephone.
At 4:25 p.m. that same afternoon, Officer Selgrath presented an affidavit for a search and seizure warrant to the Honorable Thomas Marotta, Judge of the Municipal Court, requesting permission to search the premises at 6912 Hegerman Street for any evidence of lottery paraphernalia. Judge Marotta approved and signed the warrant, which was then properly executed. The search pursuant to warrant revealed evidence of a substantial gambling operation conducted on the premises: specifically, "numerous sheets of paper listing numbers plays for 38 days, and approximately 30 names, in excess of 90,000 plays for in excess of $75,000.00 and Tally work for $80,000.00."*fn1
On April 18, 1973, the defendant-appellees moved to suppress the physical evidence seized by Officer Selgrath, alleging that there was no probable cause to search. This motion was subsequently granted by a judge of the Municipal Court, and affirmed by the lower court after argument. The Commonwealth now appeals that order.
This court may entertain the Commonwealth's appeal because the practical effect of an order which grants the suppression of evidence gives to the order an attribute of finality sufficient to justify the Commonwealth's right of appeal. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963).
The only issue presented to us is whether the facts averred in the warrant constituted probable cause to search the premises at 6912 Hegerman Street.
[ 230 Pa. Super. Page 394]
Probable cause is said to exist where the facts and circumstances within the knowledge of the officer, and of which he has reasonably trustworthy information, are in themselves sufficient to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Brinegar v. United States, 338 U.S. 160 (1949); Carroll v. United States, 267 U.S. 132 ...