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COMMONWEALTH PENNSYLVANIA v. LARRY SELL (03/06/81)

filed: March 6, 1981.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
LARRY SELL



No. 2034 October Term, 1979, Appeal from the Order in the Court of Common Pleas of Lehigh County, Trial Division, Criminal Section, Nos. 81 and 82 of 1979.

COUNSEL

Robert Lee Steinberg, Assistant District Attorney, Allentown, for Commonwealth, appellant.

C. Steven Miller, Allentown, for appellee.

Price, Wickersham and Lipez, JJ.

Author: Price

[ 288 Pa. Super. Page 372]

The Commonwealth appeals from the order of the Court of Common Pleas of Lehigh County granting appellee's motion to suppress certain items seized in a search conducted pursuant to an improperly issued search warrant. The sole issue presented in this appeal is whether appellee had standing

[ 288 Pa. Super. Page 373]

    to challenge the illegal search.*fn1 For the reasons stated herein, we conclude that appellee lacked the requisite standing and, therefore, reverse the order of the court below and remand for trial.

The following facts were adduced at the suppression hearing. On the morning of December 11, 1978, pursuant to a search warrant issued earlier that day, Detective John Young and other officers of the Allentown Police Department conducted a search of the premises known as Games Galore, an amusement arcade located at 110 North Sixth Street, City of Allentown, Lehigh County. The items enumerated in the warrant included various firearms stolen in a recent burglary. Games Galore is an amusement center providing pinball machines, computer games, pool tables and other sundry diversions for its patrons. The enterprise occupies the first floor of the building at 110 North Sixth Street and the second and third floors contain apartments rented by the owner of the building, one Joseph Clark. Mr. Clark is also the owner of Games Galore.

Much of the testimony at the suppression hearing concerned appellee's role in Games Galore. Mr. Clark testified that prior to the opening of the business in August of 1978, he had employed appellee as a serviceman to do general maintenance and repair work on the apartments. Appellee subsequently assisted Mr. Clark in renovating the first floor in preparation for the opening of the business,*fn2 and the two men then entered into a business arrangement whereby appellee would be a "working partner" and would receive half of the net profits from Games Galore so long as Mr.

[ 288 Pa. Super. Page 374]

Clark "saw to it that way." N.T. Suppression Hearing 9. As a "working partner," appellee was responsible for the actual daily operation of the business. Mr. Clark, however, kept the business' records, hired and discharged employees, and authorized all financial transactions. Furthermore, Mr. Clark testified that he had the authority to discharge appellee and reiterated that appellee was to receive fifty percent of the profits only so long as he continued working at Games Galore.

Appellee testified that as daily manager of the business he had authority to hire and discharge employees and to collect the daily receipts, which were then divided with Mr. Clark. Appellee also had keys to the building and unlimited access to the business premises. As manager, appellee was primarily responsible for the security of the establishment and, accordingly, had authority to exclude or remove individuals in the event of mischief or destruction of property on the premises. He did not, however, have keys to any of the game machines nor did he contribute any capital toward the ...


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