Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, Dec. T., 1974, No. 7078A, in case of Commonwealth of Pennsylvania v. Mary Lou Scavincky, a/k/a Lynn Woods.
Charles W. Johns and Robert L. Eberhardt, Assistant District Attorneys, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellant.
Albert Martin, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Dissenting Opinion by Spaeth, J. Hoffman, J., joins in this opinion.
[ 240 Pa. Super. Page 552]
The Commonwealth appeals the order of the lower court suppressing certain evidence seized by the police pursuant to a search warrant which connected appellee, Mary Lou Scavincky, with the operation of a lottery.*fn1 The court below found as a fact that certain alterations were made on the warrant by the police after its submission to the magistrate for execution.*fn2 Accordingly, the lower court ruled that the Commonwealth had failed in its burden to prove probable cause for the search. We conclude that even excluding the alterations from the affidavit of the search warrant, there was sufficient information upon which the magistrate could base a finding of probable cause.
On November 4, 1974 Trooper John J. Zelen of the Pennsylvania State Police filed an application for a search warrant with the local magistrate. The probable cause section of the affidavit is as follows:*fn3
[ 240 Pa. Super. Page 553]
"On 29 OCT 1974, I personally met with a confidential informant, who is reliable, and has been used in the past. This informant has supplied information to this officer and other members of the Pennsylvania State Police, on a confidential basis, that has resulted in the arrests and conviction of Julie BURDELL, Frank GREGOR, George KMETZ and Frank PIATEK, in the Courts of Allegheny County, for Lottery Operations.
This informant stated that Mary Lou SCAVINCKY, aka Lynn WOODS, runs a telephone betting operation at 2602 Brinton Manor Rd., where she takes lottery bets over the telephone from various individuals, within the confines of this apartment. These numbers bets are taken over telephone number (412) 823-4694. The informant personally knows the party involved in this operation and the location of the above telephone number.
My informant further stated that this operation runs during the week days from Monday thru Saturday, between 11:30 AM to approximately 3:30 PM. During which time SCAVINCKY aka WOODS takes the numbers bets over the telephone. My informant also stated that this apartment is rented in the name of Lynn WOODS, however the person occupying the apartment is one Mary Lou SCAVINCKY who also has a residence at 810 Spring St., N. Braddock Pa. Operates a Green Buick Le Sabre, Reg. #16574F.
On 30 OCT 1974, I personally met with my informant who took this officer and showed me the apartment at 2602 Brinton Manor Rd., at which time the name of WOODS was noted on the mail box for apartment #2. The informant then placed a telephone call to 823-4694, and placed a number of bets over this number with a person he identified as Mary Lou SCAVINCKY.
[ 240 Pa. Super. Page 554]
On 31 OCT 1974, I again personally met with my informant who stated that this operation was still in progress. At this time he placed a series of numbers bets over telephone number 823-4694 with a female the informant identified as SCAVINCKY.
On 1 NOV 1974, I again met with my informant who stated that he knew that the operation was still in progress, and he then placed a series of numbers bets over telephone number 823-4694 with a female he identified as SCAVINCKY.
On 4 NOV 1974, I again met with my informant who stated that this operation was still in progress, and he again placed a series of numbers bets over telephone number 823-4694 with a female he identified as SCAVINCKY.
Survelliance [sic] was conducted by this officer on the dates of 29 OCT 1974, 30 OCT 1974, 31 OCT 1974, 1 NOV 1974, and observed the vehicle which the informant describes [sic] as being operated by SCAVINCKY parked in the parking area of 2602 Brinton Manor Rd., Braddock Hills, Pa. The vehicle a Green Buick with a vinyl top bearing Pa. Reg. 16574F was ...