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COMMONWEALTH PENNSYLVANIA v. ROCKE S. S. TUCKER AND DEAN SPARLING (04/13/78)

decided: April 13, 1978.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ROCKE S. S. TUCKER AND DEAN SPARLING, APPELLEES



COUNSEL

Stephen B. Harris, First Assistant District Attorney, Warrington, for Commonwealth, appellant.

George E. Goldstein, Philadelphia, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Jacobs

[ 252 Pa. Super. Page 597]

Appellees Tucker and Sparling were charged with the crimes of burglary, theft, receiving stolen property, and conspiracy. The Commonwealth here appeals the trial court's order suppressing all the evidence gained through the use of an allegedly defective search warrant.*fn1 The sole issue before us is whether a deliberate misstatement of fact in an affidavit for a search warrant always invalidates the warrant. We hold that it does not and reverse the suppression order of the court below.

Testimony at appellees' non-jury trial established that on October 18, 1975, two white males entered the Country Host Restaurant in Solebury Township, Bucks County, and without permission, removed a quantity of roast beef, bacon, and other meat products from a walk-in refrigeration unit. Two restaurant employees observed the men and described both of them to police as being approximately six feet four inches tall and as wearing faded blue jeans, and ski masks. One was described as wearing a "V" neck brown sweater and the other as wearing a blue flannel shirt with red and black plaid stripes. Neither employee saw the men leave the area after they exited from the restaurant. A third employee, then on his way to work, stated that two vehicles, one a blue Falcon, and the other a later model vehicle with "high tail fins" and with a dent and gray primer paint on the driver's side, came speeding out of the restaurant parking lot shortly after the time of the burglary.

[ 252 Pa. Super. Page 598]

Approximately one-half hour following the burglary, the police located the two vehicles thought to be those described by the third employee in a nearby parking lot. The car with the big tail fins was a Plymouth and the car which had been described as a Falcon was, in fact, a Buick.

On the seat of the Plymouth, in plain view of the police, were ski masks matching the description of those worn by the alleged burglars. While the police were standing in the parking lot observing the cars, two white males, one wearing a blue shirt with red and black plaid stripes and the second wearing jeans and a brown "V" neck sweater appeared from the area of a nearby apartment. The one wearing the shirt entered the Buick. Both men were immediately placed under arrest.

The police then proceeded to a magistrate's office where they obtained a warrant to search the two vehicles and the apartment of Bonnie Wonsidler. Wonsidler was the girl friend of Appellee Tucker and lived in an apartment near the parking lot where the vehicles were located. Upon searching the cars and the apartment, the police found the allegedly stolen meat and the sack in which it was carried from the restaurant.

Appellees' pretrial motion to suppress the evidence seized from the vehicles and the apartment was denied. At appellees' trial, the witness who observed the vehicles leaving the restaurant parking lot testified that one car was a blue Falcon. N.T. 100. At no time, did he state that the car was or even might have been a powder blue Buick. Testimony indicated that when Detective Daniels came upon the cars and saw a blue Buick instead of a blue Falcon he radioed to an officer at the scene of the burglary to ask whether the vehicle used could have been a Buick rather than a Falcon. The other officer replied that it could have been, so Detective Daniels, in his application for the search warrant, described the car to be searched as a Buick rather than a Falcon. N.T. 168-169.

At the conclusion of the Commonwealth's case, appellees moved that the court reopen the ...


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