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COMMONWEALTH PENNSYLVANIA v. VINCENT L. PERRY. COMMONWEALTH PENNSYLVANIA (04/28/78)

decided: April 28, 1978.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
VINCENT L. PERRY. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. JOSEPH W. O'HANLON



COUNSEL

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

Carmen P. Belefonte, Media, for appellee, Perry.

August T. Groover, Media, submitted a brief for appellee, O'Hanlon.

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

Author: Price

[ 254 Pa. Super. Page 551]

Appellees Vincent L. Perry and Joseph W. O'Hanlon were arrested on September 23, 1975, for pool selling and bookmaking*fn1 and conspiracy.*fn2 Suppression applications were filed, and after a hearing on March 24-27, 1976, the lower court ordered the suppression of all evidence obtained during a search of the premises located at 1376 Market Street, Linwood, Pennsylvania. This order was based on the lower court's finding that the police entered the building before announcing their identity and purpose. The Commonwealth has appealed from this order of suppression.*fn3

On September 23, 1975, Pennsylvania State Police troopers, armed with a search warrant, proceeded to a two story commercial building housing the Summit Beef Company. They approached a side entrance to the structure. The lower court found that although this door was unlocked during business hours it was not open to the public in general. On the date in question, the police had observed at least ten persons, without knocking, enter the establishment through this door. When the officers arrived, they noticed that the door was ajar one to three inches. They looked into the room, but no one could be seen. One of the officers knocked three times, waited approximately five seconds and

[ 254 Pa. Super. Page 552]

    then pulled the door further open. From outside the premises, the troopers announced their identity and purpose to an employe, who was working in the room at a point beyond the troopers' original line of vision, and inquired as to the whereabouts of appellee-Perry. The troopers entered the room and were directed by the employe to another area of the building.

When the officers approached Perry's office, they observed, through an open doorway, that both appellees were sitting near a desk. The troopers read the warrant to the two men and subsequently seized $7,500 in currency, an adding machine, approximately 400 football pool tickets, tally sheets and various other gambling paraphernalia.

The lower court found that the police properly identified themselves and stated their purpose, but suppressed the evidence because the troopers "opened the door without permitting the occupants to voluntarily relinquish the premises."*fn4 We hold that the lower court erred in suppressing

[ 254 Pa. Super. Page ...


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