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COMMONWEALTH v. DEVINE (03/31/75)

decided: March 31, 1975.

COMMONWEALTH
v.
DEVINE, APPELLANT. COMMONWEALTH V. GIGLIO, APPELLANT



Appeals from judgments of sentence of Court of Common Pleas of Mercer County, March T., 1973, Nos. 12 and 13, in cases of Commonwealth of Pennsylvania v. James Devine, and Same v. Dominic J. Giglio.

COUNSEL

Anthony V. DeCello, with him DeCello, Bua & Manifesto, for appellant, at No. 88.

Herman M. Rodgers, with him Rodgers, Marks & Perfilio, for appellant, at No. 103.

Robert F. Banks, First Assistant District Attorney, with him Joseph J. Nelson, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Dissenting Opinion by Van der Voort, J. Watkins, P.j., and Price, J., join in this dissenting opinion.

Author: Hoffman

[ 233 Pa. Super. Page 100]

Appellants, convicted of unlawful possession of marijuana and related charges, contend that the warrant authorizing the search of appellants' home lacked probable cause.

In September, 1972, appellants, formerly high school classmates, began sharing a house on South Darby Road in Hickory Township, Mercer County. Some time before the beginning of 1973, appellant Giglio left the Shenango Valley area and traveled to Texas. There he met Samuel Perfilio, also from Mercer County. Perfilio and Giglio returned to the South Darby Road house in January, apparently with the intention of returning to Texas.

On January 19, 1973, at about 5:30 p.m., police officers of the Hickory Township Police Department, the

[ 233 Pa. Super. Page 101]

Pennsylvania State Police, and the Farrell Narcotics Unit, surrounded the South Darby Street residence. Armed with a search warrant based on information given by an informant, Captain McFarland of the Narcotics Unit announced his identity and the purpose of the search. The police saw a person at the window and heard what sounded like a person running inside the house. After waiting about a minute, the captain ordered that his men break down the door.

Upon entry into the house, the police found appellant Giglio downstairs near the kitchen. Appellant Devine was discovered leaving his bedroom and coming into the hallway. Perfilio and a fourth occupant of the residence were alone in separate bedrooms.

The subsequent search revealed almost eighteen pounds of marijuana, an electric burner suitable for smoking marijuana, and a suitcase having traces of marijuana, all of which were located in an otherwise empty room. A small quantity of marijuana was discovered in Devine's bedroom. Two "bags" were found in the living room area which Giglio was leaving when the police entered the house. No drugs were discovered in the bedrooms occupied by Perfilio or the other occupant.

Appellants and Perfilio were charged with unlawful possession of marijuana, conspiracy to unlawfully possess marijuana with intent to deliver, and conspiracy to unlawfully possess marijuana under the Uniform Controlled Substance, Drug, Device and Cosmetic Act.*fn1 On April 30, 1973, the court below heard the appellants' motions to suppress the evidence seized in the January raid. The only issue was the sufficiency of the probable cause as stated in the affidavit in support of the search warrant. The court denied the motions. ...


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