Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1973, Nos. 558 and 559, in case of Commonwealth of Pennsylvania v. Thomas Griffin.
Stanley Bashman, for appellant.
Geoffrey H. Keppel, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, 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 Cercone, J.
[ 232 Pa. Super. Page 165]
This appeal arises from the conviction of appellant, Thomas Griffin, on charges of manufacture, delivery or possession with intent to manufacture or deliver a controlled
[ 232 Pa. Super. Page 166]
substance,*fn1 and conspiracy. Appellant now contends that certain evidence produced as a result of the search of his residence should have been suppressed by the hearing court below because: (1) Appellant did not voluntarily consent to the search; (2) Appellant's alleged consent was obtained as a result of a violation of Pa. R. Crim. P. 118;*fn2 (3) Appellant's alleged consent was given as a result of the police's display of a warrant authorizing the search of other areas of his residence.
Appellant and his roommate-accomplice, Leonard Gray, were arrested as a result of transactions and conversations with several undercover police officers, including a Federal Narcotics Agent, acting as potential purchasers of narcotics. The convoluted facts leading up to that arrest need not be restated here. Suffice it to say, the police had established a fairly strong case of direct and circumstantial evidence against appellant prior to arresting him and his accomplice on the charges mentioned above.*fn3
Following appellant's arrest, and after giving him the Miranda warnings, the police wished to search his three-story residence located on North 17th Street in Philadelphia. While being interviewed for the purpose of obtaining a search warrant for his residence, the appellant first told Officer Strohm, who had participated in the arrest, that a boarder lived on the third floor of appellant's home. Based on this information Officer Strohm prepared a warrant for only the first two floors
[ 232 Pa. Super. Page 167]
of appellant's residence. Officer Strohm proceeded to get this warrant signed by a magistrate and then returned to the cell in which the appellant and Gray were being kept. He then presented the warrant to the appellant and Gray and arranged to have appellant accompany the officers for the search of his home. At this time, approximately 3:00 a.m., the appellant and Leonard Gray stated that they wanted to say something about the third floor of the residence. Before taking the statement Officer Strohm asked a police sergeant and an assistant district attorney to be present, after which Gray and the appellant were again given their Miranda warnings. Appellant and Gray nevertheless decided to make a statement concerning the third floor and disclosed that they shared the bedroom on the entire third floor and consented to the police search of this third floor without a warrant. Gray stated that Strohm would find ten to twelve bags of heroin in a closet. A search of the third floor revealed 25 glazed ...