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COMMONWEALTH v. COOPER ET AL. (04/22/76)

decided: April 22, 1976.

COMMONWEALTH
v.
COOPER ET AL., APPELLANTS



Appeals from judgment of sentence of Court of Common Pleas of Northampton County, Jan. T., 1972, No. 239, in case of Commonwealth of Pennsylvania v. Arthur M. Cooper and Harold J. Davis.

COUNSEL

Philip D. Lauer and Daniel E. Cohen, with them Seidel and Cohen, for appellants.

John E. Gallagher, First Assistant District Attorney, and Charles H. Spaziani, District Attorney, submitted a brief for Commonwealth, appellee.

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

Author: Hoffman

[ 240 Pa. Super. Page 481]

Appellants were convicted of trafficking in narcotics, possession of narcotics,*fn1 and conspiracy.*fn2 Initially, appellants contend that the evidence presented at trial was insufficient to convict. Further, appellants challenge the introduction of evidence obtained pursuant to: (1) a New York wiretap; (2) eavesdropping at the door of appellant Harold Davis' motel room; (3) a warrantless search of a trailer rented by appellant Arthur Cooper; and (4) search warrants secured subsequent to the warrantless search. Finally, appellants contend that the court en banc erred in holding that the trial court's refusal of their request for pre-trial statements and reports of Commonwealth witnesses was "harmless error."

We hold that the evidence presented was sufficient to convict appellants of the crimes charged and, therefore, we affirm the lower court's denial of appellants' motion in arrest of judgment. However, we disagree with the lower court's conclusion that the failure to provide appellants with the pre-trial statements and reports was "harmless error." Thus, we reverse and remand for a new trial. Because appellants may be retried, we must consider the claim that evidence obtained in violation of the Fourth Amendment was introduced at trial. However, we affirm the lower court's holding that the evidence in question was properly admitted.

The following facts led to appellants' arrest and conviction. From January 8, through March 8, 1972, the New York State Police placed a wiretap on appellant Davis' telephone pursuant to a warrant procured on

[ 240 Pa. Super. Page 482]

January 7, 1972 by the Rensselaer County, New York District Attorney. On February 22, 1972, the New York State Police notified Trooper John Schafer of the Bethlehem Barracks of the Pennsylvania State Police that Davis would be flying to the Allentown-Bethlehem-Easton (ABE) airport and requested surveillance because Davis was believed to be involved in narcotics traffic. The Pennsylvania State Police followed appellant from the ABE airport by helicopter and by automobile during his entire stay in Pennsylvania. Davis was observed talking to a man later identified as Anthony Romano. No arrests resulted from this surveillance.

On February 29, 1972, Trooper Joseph Kocevar, one of the officers involved in the surveillance of the previous week, observed Davis driving east on Route 22. Trooper Kocevar followed Davis to a motel in Hanover Township, Northampton County, where Davis registered to room 120 under an assumed name. Trooper Kocevar radioed for assistance, and the police began a "stake-out." Several officers assumed positions on the roof of the motel, while others waited in the motel office and in the motel parking lot. Troopers Thomas Marchetti, Robert Gerken, and John Schafer received permission from the motel manager to occupy room 118, which was adjacent to room 120. Trooper Marchetti opened the double door on his side connecting room 118 with room 120 and sat in a chair with his head, at times, against the door of room 120. He used no mechanical devices to amplify the sound. Surveillance continued in this manner from 2:30 p.m. on February 29 until 7:00 the next morning.

During the course of Trooper Marchetti's vigil, he wrote down all of Davis' conversations and movements.*fn3 At 5:10 p.m., Davis called the desk and inquired whether there were any messages. At 5:30 p.m., Davis left his

[ 240 Pa. Super. Page 483]

    room and returned at 6:10 p.m. At 7:15 p.m., and 10:15 p.m., Davis again called the desk for messages. At 1:18 a.m., Marchetti heard Davis talking on the telephone: "Yeah. How you feeling? That's too bad. Having trouble with the trailer. You will be here by daybreak. Good. Well, I'll be leaving here and I'll be back before you get here. Room 120, right? Okay. See you then."

Shortly afterwards, Davis placed a call and told the other party that his friend was having difficulty getting to the motel, and that he would let him know if he, Davis, was going to be late. He asked, "How did the show go?" "Yeah . . . No kidding. . . . Any buys? . . . How big an order? . . . Oh, boy . . . ." After more conversation, Davis hung up. Then, at 6:55 a.m., a call came to the room: "Yeah . . . . Where you at? . . . Gulf Station. . . . Just come in the parking lot and park trailer in front of motel and come to Room 120, all right?"

At 7:02 a.m., the officers heard a knock at the door of room 120, and Marchetti heard the following exchange:

"Davis: 'How you feeling?'

"Cooper: 'I had to park on side. Lot full.'

"Davis: 'You do what you want. Go home. Get some sleep. Show doing terrible. Not going back. We'll talk later. Let's get the grass [marijuana] to Tony.'

"Cooper: 'Why don't you come with me?'

"Davis: 'Let's keep this in separate cars.'"

The appellants left the room; the officers in room 118 followed. When the appellants were approximately 10 to 15 feet from their rental trailer, the police converged and arrested them. Approximately eleven officers were involved in the arrest. The officers warned appellants of their rights and searched them. One of the officers removed two keys from appellant Cooper's pocket. As the officers approached the trailer, the distinct aroma of marijuana emanated from the trailer. While appellants were held at gunpoint, two troopers ...


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