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COMMONWEALTH v. FERGUSON (12/11/74)

decided: December 11, 1974.

COMMONWEALTH
v.
FERGUSON, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, No. 72-00-2166, in case of Commonwealth of Pennsylvania v. Columbus Ferguson.

COUNSEL

Andrew G. Gay, for appellant.

Mark Sendrow, Assistant District Attorney, with him David Richman, Assistant District Attorney, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J.

Author: Spaeth

[ 231 Pa. Super. Page 329]

Appellant, Columbus Ferguson, was arrested on January 14, 1972, in Philadelphia and charged with illegal possession of heroin.*fn1 A pre-trial motion to suppress physical evidence seized immediately prior to appellant's arrest was filed and after an evidentiary hearing denied on February 14, 1972. Appellant was then tried in Municipal Court and found guilty as charged. A petition for a writ of certiorari in the Court of Common Pleas was denied on November 29, 1972. This appeal followed. Appellant contends that the physical evidence presented at trial was obtained during an unlawful search and seizure, and, in the alternative, that the evidence was insufficient to support the verdict.

On January 11, 1972, an informer notified a Philadelphia police officer that he had seen heroin in a garage at 2223 West York Street, Philadelphia. For the next two days the garage was placed under close surveillance. During the evenings, when the garage doors were closed and the lights were out in the business portion of the building, fourteen people were seen to enter and leave the garage. On both nights appellant left shortly after twelve and locked the garage doors. On January 14, 1972, a warrant to search the

[ 231 Pa. Super. Page 330]

    garage was issued by Judge Zagorski of the Philadelphia Municipal Court. When the police officers arrived at the garage to execute the warrant, appellant was leaving in his automobile accompanied by a woman. The police followed, stopped them, showed appellant the warrant, and returned with him to the garage. After appellant had unlocked two locks and chained a German shepherd watchdog to a pole inside, the police conducted a search. They found approximately one hundred business cards with the inscription "Ferguson's Auto Repairs, Transmission Specialist, Tune-up, Motor Work and State Inspection, BA 8-4040, 2223 West York Street, Philadelphia, Pennsylvania". In the supply room in boxes of brake linings they found two bundles of glazed paper packets containing white powder, later analyzed as heroin. An opening in the supply room led to a second level on which two more bundles were found amid windshields and car mufflers. Downstairs they noticed that the back of the water cooler was loosened and found one bundle inside the cooler. Finally, underneath the desk they found a brown paper bag containing two ounces of heroin. In all, one hundred and twenty-one packets and the brown paper bag of heroin were seized.

At the suppression hearing there was testimony that the officer received his information from an informer, but other than that the Commonwealth relied on the face of the warrant. The prosecutor, however, never formally introduced the warrant into evidence. Appellant accordingly claims that there was no evidence about the date of the informer's observation, nor any evidence to show that the officer swore to the facts in the affidavit, that the warrant described the property to be seized, or that Judge Zagorski otherwise had sufficient probable cause to issue the warrant. Since the warrant is not in the record these contentions cannot be properly appraised. We could rule

[ 231 Pa. Super. Page 331]

    that the Commonwealth failed to meet its required burden and that appellant is entitled to a new trial. See Commonwealth v. Bove, 221 Pa. Superior Ct. 345, 348, 293 A.2d 67, 68 (1972). The transcript of the suppression hearing indicates, however, that a warrant was given to the court and defense counsel for their inspection. In the interests of justice, therefore, this case will be remanded to the court below to permit the warrant to be formally introduced into the record. At that time the court should also explore appellant's further allegation that there is a discrepancy between the control number given by the police in their testimony and the number that appears on the copy of the warrant given to defense counsel. Thereafter the completed record shall be forwarded to this court for further prosecution and disposition of the appeal.

As has been mentioned, appellant also contends that even with the evidence obtained pursuant to the search warrant there was insufficient evidence to support his conviction. We consider this claim now ...


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