Nos. 379-380 April Term, 1977, Appeal from the Order entered December 8, 1976, by the Court of Common Pleas, Westmoreland County, Criminal Division at Nos. 1641-42 October Term, 1976.
John J. Driscoll, Assistant District Attorney, Greensburg, for Commonwealth, appellant.
Charles E. Marker, Greensburg, for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, P. J., dissents. Spaeth, J., files a concurring opinion. Watkins, former P. J., and Hoffman, J., did not participate in the consideration or decision of this case.
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This appeal by the Commonwealth arises from the order of the lower court suppressing evidence of certain
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gambling devices and dismissing the charges against appellees.*fn1 For the reasons stated herein, we reverse the suppression order and remand the case for further proceedings.
The record discloses the following facts. During the early morning hours of May 21, 1976, Troopers Dominski and Deise of the Pennsylvania State Police entered the South Greensburg Hunt Club, located in South Greensburg, West-moreland County. The visit was occasioned by certain complaints received by the police alleging that the club was harboring gambling activities. Neither trooper was in uniform at the time, nor did they possess either search or arrest warrants. The club is a private one in which admission is theoretically restricted to members; a fact known to both troopers, neither of whom were club members. The single entrance is through a locked front door activated by a buzzer system. Contained in the door is a one-way mirror which prevents those outside the building from peering into the club.*fn2
On the instant occasion, the two troopers gained entrance simply by pressing the doorbell and being admitted, although they were subsequently confronted at the bar by the bartender, Robert Weimer, and questioned as to their membership.*fn3 Both were eventually allowed to order drinks. While standing at the bar, the troopers observed various gambling paraphernalia, including a "fish bowl", punch
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board, and tip sheets. Trooper Deise then telephoned the Greensburg police barracks and requested that uniformed personnel be dispatched to the scene. Upon their arrival some forty-five minutes later, they were observed by Weimer through the one-way mirror. After he failed to allow them entry, Trooper Deise identified himself, advised Weimer that an arrest was to be made, and opened the door for the uniformed officers. Robert Weimer then telephoned John Weimer, his father and president of the club, and requested that he come to the premises. On the latter's arrival, he was arrested for possession of gambling devices,*fn4 and certain evidence was confiscated.
Subsequently, the state police again received anonymous tips of further gambling activities at the club. Pursuant to this information, Trooper Deise and Corporal Singer visited the premises at approximately 2:15 a. m. on June 17, 1976. As in the May 21st entry, the troopers were not in uniform, lacked either search or arrest warrants, and were not club members. On this occasion, Corporal Singer entered the premises as part of a group of five other people who were unknown to him. Once inside, he proceeded to the bar, observed a punch board atop the bar, and then opened ...