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COMMONWEALTH v. LARDO (04/22/76)

decided: April 22, 1976.

COMMONWEALTH
v.
LARDO, APPELLANT



Appeals from judgments of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Sept. T., 1974, No. CI 7403469A, and June T., 1974, No. CI 7403594A, in cases of Commonwealth of Pennsylvania v. Ralph Lardo,*fn* and Same v. Same.

COUNSEL

Albert Martin, for appellant.

Louis R. Paulick and Robert L. Eberhardt, Assistant District Attorneys, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellee.

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

Author: Van Der Voort

[ 240 Pa. Super. Page 109]

This appeal is taken from judgments of sentence rendered following non-jury trials and verdicts of guilty on various charges of operating a lottery.*fn1 On October 18, 1974, trial was held before Judge John W. O'Brien, who adjudicated appellant guilty and, on January 14, 1975 suspended a sentence of imprisonment of one to three years and a fine of 6 1/4 cents, and placed appellant on probation for three years and ordered a fine of $5,000.00 to be paid.

On October 24, 1974, another trial was held before Judge Loran L. Lewis, who adjudicated appellant guilty

[ 240 Pa. Super. Page 110]

    and, on January 14, 1975, imposed sentence of eight to twenty-three months imprisonment together with a fine of 6 1/4 cents, sentence to be stayed pending appeal to this Court. We ordered the appeals consolidated. There is one issue pertaining to both cases, viz., whether or not the affidavits to the search warrants as executed on J.P. Criminal 74-R2006 Form promulgated by our Supreme Court of Pennsylvania were in substantial compliance with Pennsylvania Rule of Criminal Procedure No. 2006. As to each case, a search warrant was issued and search made of premises described therein, resulting in arrest of appellant and seizure of certain items of evidence which were the subject of suppression motions in each trial. Suppression motions were denied. Appellant now alleges that denial of these motions was error, arguing that the warrant forms' failure to contain both a certification for the jurat and a separate one for the issuance of the warrant instead of one certification serving both purposes is a fatal defect. In each case, the contents of the warrants and information alleged in the affidavit are not otherwise challenged.

With respect to the appeal at our Number 342 April T., 1975, Trooper Drish of the Gambling Detail of the Pennsylvania State Police surveilled the appellant's activities at and near No. 7134 Thomas Boulevard in the City of Pittsburgh, on the 14th, 15th, 16th and 17th of May, 1974. With the information he acquired from his observations together with other substantial information giving him probable cause he secured a search warrant on May 20, 1974, for the apartment above a garage at the rear of 7134 Thomas Boulevard and for the person of appellant. On that same day he executed the search warrant. In the apartment was the appellant, 18 brown paper bags containing "numbers" slips for past bets, a shoe box containing tapes for an adding machine, numbers slips and $300.00 in currency, a Victor adding machine, and a clip board containing current numbers bets. The post-dated and current numbers slips indicated a total play of $111,000.00.

[ 240 Pa. Super. Page 111]

With respect to the appeal at our Number 287 April Term, 1975, Trooper Drish on June 6, 1974 having information giving him probable cause secured a search warrant for Room 403 at the Sheraton Inn in the Monroeville Mall, together with warrants to search the persons of appellant and a co-defendant Alfred R. Schipani, Jr. On that same day, he and two other Troopers executed the warrants. In the lobby of the Inn, Mr. Schipani was found. He had a paper bag containing current numbers bets totaling approximately $3,051.00 and dated June 6, 1974. In the room (apartment) there were the appellant, another person, two adding machines, a suitcase containing bags of numbers slips and currency in the amount of $455.00. The plays indicated on the numbers slips found in the room were as follows:

$9,876.54 for May 31, 1974;

1,740.68 for June 1;

10,795.80 for June 3;

8,348.10 for June 4;

9,395.29 for June 5; and

5,526.05 for June 6, 1974.

[ 240 Pa. Super. Page 112]

With further respect to the appeal at Number 342 April Term, 1975, the record indicates no filing of any post-trial motions.*fn2 The docket entries have no reference to them nor to any order refusing such motions. Ordinarily we would be foreclosed from considering any issues in this appeal under the ruling in Commonwealth v. Coleman, 458 Pa. 324, 327 A.2d 77 (1974). However, the opinion of the court below states that "the defendant's Motion for a New Trial and Arrest of Judgment was also denied" and the opinion considers the one issue of whether or not the affidavit accompanying the search warrants was in substantial compliance with Pa. R. Page 112} Crim. P. 150. One basic reason for the foreclosure by the Appellate Courts from consideration of any issues not raised by post-trial motions is that failure to raise them below deprives the lower court of the opportunity to consider them. Here the court below took the opportunity to consider the one issue relating to the warrant affidavit. Furthermore the identical issue is raised in the appeal at Number 287 April Term, 1975. Hence we will consider that issue as if it were properly raised in both appeals.

The Constitution of Pennsylvania, Article 1, § 8 and the Pennsylvania Rule of Criminal Procedure 2003 set forth the requirements for issuance of a search warrant. In pertinent part, Rule 2003, reflecting the Constitutional provision, provides as follows:

"(a) No search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority."

The appellant attacks the affidavits of Trooper Ronald Drish claiming that because there is not one place for the issuing authority to sign and affix his seal to the jurat and another separate place for him to sign and affix his seal for his issuance of the search warrant the affidavit is in effect no affidavit.

There is no separate definition of an affidavit in the Pa. R. Crim. P. The word is defined in one of our statutes, November 25, 1970, P. L. 707, No. 230, added December 6, 1972, P.L. 1339, No. 290, § 3, as amended December 10, 1974, P.L. 816, No. 271, § 4, imd. effective, 1 Pa. C. S. § 1991:

"'Affidavit.' A statement in writing of a fact or facts signed by the party making it, sworn to or affirmed before an officer authorized by the laws of this Commonwealth to take acknowledgments of deeds, or authorized to administer oaths, or before the particular officer or individual designated by law as the one before whom it is to or may be taken, and officially certified to in the case of an officer under his seal of office."

[ 240 Pa. Super. Page 113]

Case law defines an "affidavit" as a statement in writing under oath administered by a duly authorized person. In Re: Breidt, 84 N.J. Eq. 222, 94 A. 214 (1915); Youngker v. State of Florida, Fla. App. Ct., 215 S. 2d 318 (1968); Womack v. Allstate Insurance Company, Tex. Civ. App., 286 S.W. 2d 308 (1956).

The application for the search warrant in the instant case after the caption starts out as follows:

"Tpr. Ronald Drish Penna. State Police 565-5700 being duly sworn (or affirmed) before me according to law, deposes and says that there is probable cause to believe that certain property is evidence of or the fruit of a crime or is contraband or is unlawfully possessed or is otherwise subject to seizure, and is located at ...


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