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COMMONWEALTH PENNSYLVANIA v. THOMAS MCGINN (12/02/77)

decided: December 2, 1977.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
THOMAS MCGINN, APPELLEE



No. 1196 October Term, 1976, Appeal from the Order dated February 10, 1976, of the Court of Common Pleas of Delaware County, Criminal Division, at No. 4003A September Session, 1975.

COUNSEL

Vram Nedurian, Jr., Assistant District Attorney, Media, with him Ralph B. D'Iorio, Assistant District Attorney, Media, for the Commonwealth, appellant.

John Rogers Carroll, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Hoffman and Cercone, JJ., join.

Author: Price

[ 251 Pa. Super. Page 171]

On August 6, 1975, Pennsylvania State Police officers conducted a search of appellee's residence pursuant to a search warrant. The search uncovered various pool selling and bookmaking paraphernalia, and, as a result, appellant was indicted for violations of 18 Pa.C.S. ยง 5514.

Appellee filed a motion to suppress the seized evidence, alleging, inter alia, that the warrant was not applied for, issued, and executed in conformity with the requirements of Pa.R.Crim.P. 2001-10, and that the affidavit filed in support

[ 251 Pa. Super. Page 172]

    of the warrant did not establish probable cause. At the suppression hearing, Trooper James L. Anderson was cross-examined about telephone calls which he made or observed being made to appellee for the purpose of placing bets. Appellee's attorney asked Trooper Anderson to explain specifically his statement that records of the calls were made shortly after the calls were completed. Trooper Anderson answered as follows:

"A. I believe they were made in the car. In Trooper Taylor's car. We had him with the informant -- I'm sorry. I'm going to August 5th. The phone call on the 30th was made from the informant's residence. I can't be sure whether that was made in the motel or in the car on the way to the motel after the phone call.

Q. Well, now, geographically, where were you when this call was made?

THE COURT: Which call are we talking about?

MR. CARROLL: The call of July 30th, sir.

A. You are talking about the informant's house?

THE COURT: He's asking you where you were.

THE WITNESS: At the informant's house.

THE COURT: All right. Geographically, where is that?

THE WITNESS: Well, the best I could -- that I would prefer to answer that is Eastern Pennsylvania. ...


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