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COMMONWEALTH PENNSYLVANIA v. OWEN GALLAGHER (04/11/80)

filed: April 11, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
OWEN GALLAGHER, APPELLANT



No. 2236 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Delaware County, Criminal Division, before the Honorable Howard F. Reed, Jr., as of No. 6148, A,F.H & I of 1976

COUNSEL

Albert M. Scibello, Assistant Public Defender, Media, for appellant.

Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.

Cercone, President Judge, Wieand and Louik, JJ.*fn*

Author: Louik

[ 276 Pa. Super. Page 594]

This case turns on the issue of Defendant, Owen Gallagher's standing to challenge the validity of a search from which evidence was seized which led to his conviction. Gallagher was convicted on May 13, 1977 of: Burglary (18 Pa.C.S.A. § 3502); Possessing Instruments of Crime (18 Pa.C.S.A. § 907[a]); Criminal Conspiracy (18 Pa.C.S.A. § 903); and Incendiary Devices (18 Pa.C.S.A. § 7306).

[ 276 Pa. Super. Page 595]

These charges arose out of an incident on the evening of October 24, 1976 at Ernesto's Italian Market in Clifton Heights, Pennsylvania. Gallagher and his two co-defendants, David Eagen and James Parsells, were arrested that night.

Prior to the arrest, two gas station attendants at a service station near Ernesto's Market saw activity near the Market after business hours. Joseph Naylas, one of the attendants, saw a dark blue van parked alongside the Market and a few minutes later, driven away. During this time, Naylas saw two men near the van and close to an open door to the Market building.

The attendants called the police, who responded and found the defendants inside the building. The police eventually seized and arrested the defendants after one of them opened a door to the Market. At the same time as the defendants were seized, an explosion occurred on the second floor of the Market. Defendants were taken to local police stations subsequent to their arrest.

The police were advised as to the existence of the van at about this time. After a search, the van was discovered one-half block from the Market. Police discovered that the van was owned by Elizabeth Parsells of New Jersey. The vehicle was taken into custody and transported to a police station where a search warrant was prepared.

The search warrant permitted a search of the van until 10:30 P.M. A search was conducted at 10:15 P.M. Among the articles found in the van was a list of the devices used and found in the building. Defendant petitioned the court to suppress the evidence in a timely fashion and on May 2, 1977, Judge Howard F. Reed of the Common Pleas Court of Delaware County, refused to suppress the evidence.

The court will not discuss the validity of the search warrant until it has decided whether the defendant has standing to assert the constitutional right ...


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