Appeal from order of Court of Common Pleas of Cumberland County, No. 88 of 1975, in case of Commonwealth of Pennsylvania v. Lemuel Thomas Archer and Mrs. Lemuel Thomas Archer.
Kevin A. Hess, Assistant District Attorney, with him Harold E. Sheely, District Attorney, for Commonwealth, appellant.
Arthur L. Goldberg, with him Goldberg, Evans & Katzman, for appellees.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Dissenting Opinion by Hoffman, J. Spaeth, J., joins in this dissenting opinion.
[ 238 Pa. Super. Page 104]
Appellees were indicted for pool selling and bookmaking.*fn1 The lower court sustained appellees' motion to suppress the evidence, and the Commonwealth has appealed. There is no question that this appeal is proper. Commonwealth v. Deren, 233 Pa. Superior Ct. 373, 337 A.2d 600 (1975). In spite of an excellent opinion by Judge Weidner,
[ 238 Pa. Super. Page 105]
we believe the evidence should have been admitted and will, therefore, reverse the suppression order and allow the Commonwealth's use of the evidence.
The record reveals that on October 4, 1974, Trooper George Wynn of the Pennsylvania State Police obtained a search warrant for appellees' residence at 7 Creek Road, Lower Allen Township, Cumberland County, Pennsylvania. The premises and all persons therein were to be searched for gambling paraphernalia.
Trooper Wynn arrived at the premises at approximately 3:00 p.m., accompanied by Troopers Frederick Boyer and Doris Scott. The house was unoccupied at the time, and the officers waited outside until 3:40 p.m., when appellee Mrs. Archer arrived. Trooper Wynn identified himself, told the appellee that he had a search warrant, and accompanied her into the house. The trooper read the probable cause section of the warrant to Mrs. Archer and also the section describing what items were to be seized.
The only evidence uncovered by the search of the premises was a daily racing form. However, a search of Mrs. Archer's pocketbook uncovered two slips containing wagers on horse races, as well as two small books with telephone numbers. In addition, several telephone calls were received at the residence during the search. In every instance, the telephone was initially answered by Trooper Scott. The first caller identified himself as Sam Reiseman from Philadelphia and stated that he wished to speak to "Reb" (a nickname for appellee Lemuel Archer). Trooper Scott informed him that "Reb" was not present, and the caller then asked for "Nanna" (a nickname for Mrs. Archer). Mrs. Archer was immediately handed the telephone. Mrs. Archer told the caller she didn't know why he was calling, and attempted to break the connection. However, Trooper Boyer lifted the receiver on an extension telephone in a nearby room and kept the line open. Trooper Scott then spoke into the telephone, and the man on the other end placed a wager on a horse race.
[ 238 Pa. Super. Page 106]
A second call was from a man named "Doc" who said he was calling for "Phil." He wanted to know why the telephone number had been changed from 6996 (the telephone number at the alleged location of a Dauphin County bookmaking operation). This caller also inquired if the results were in yet. A third caller immediately hung up when Trooper Scott answered the telephone, and a fourth caller stated he had the wrong number and hung up. About a minute later, a fifth call came in. Trooper Scott testified that the voice of this caller sounded like the voice of the fourth caller. This person asked for "Lem," and, when informed that he was not present, left the message, "tell him Clint called and will call back."*fn2
We must first examine the officer's written affidavit to determine if adequate probable cause existed to support the issuance of the search warrant.*fn3 The affidavit, as presented to the magistrate, reads as follows:
"On August 19, 1974, this officer executed a search warrant at 421 S. 17th Street, Harrisburg City, Dauphin County, Penna. The raid resulted in the seizure of gambling equipment & records. One (1) person was arrested for BOOKMAKING. The seized records indicated that this location was being used to receive horse bets from approximately fifteen (15) BOOKMAKERS in Dauphin & Cumberland Counties. The services of a confidential informant were acquired to identify the person(s) running the gambling operation. The informant advised that Lemuel Thomas ARCHER also known as the 'REBEL' is running the gambling operation. The informant indicated that ARCHER did not take the bulk of the action, however, ARCHER is taking action from certain individuals
[ 238 Pa. Super. Page 107]
at locations in Dauphin & Cumberland Counties. The Dauphin County location is 4913 Virginia Ave., Lower Paxton Twp., phone 717 652 6996. The phone is listed to Lloyd T. BROWN at the same address. The Cumberland County location is 7 Creek Road, Lower Allen Township, phone ...