No. 78 Harrisburg, 1981, Appeal from Judgment of Sentence imposed March 11, 1981 in the Court of Common Pleas, Criminal Division of Dauphin County at Nos. 447 and 448 of 1980.
Lawrence A. Kalikow, Assistant Public Defender, Harrisburg, for appellant.
William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Brosky, McEwen and Beck, JJ.
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Appellant was convicted, in a non-jury trial, on two counts of Arson -- Endangering Property. He was sentenced to a prison term of five to fifteen years, said sentence to run concurrently with that imposed on a prior conviction.
The sole evidence presented at trial to connect appellant directly with the fires consisted of entries in a diary. The appellant challenges the refusal of the trial judge to suppress the diary. In addition, appellant claims that there was insufficient evidence presented by the Commonwealth at the Preliminary Hearing to establish a prima facie case, and that the testimony of the fire marshal as to the incendiary origin of one of the fires should have been stricken.
On February 8, 1980, appellant was sentenced on a prior offense, and on that date one Lorene Bryan was assigned as his probation officer. On that date, District Attorney Joseph H. Kleinfelter, the prosecutor on the prior offense, arranged to meet with the probation officer. He told her that the wanted her to be aware that appellant would require very close supervision in that Mr. Kleinfelter had learned in the course of his investigation on the weapons offense that appellant was suspected of one or more arsons occurring in 1977. He did not instruct her to look for anything, but did request that if she came across any information or found out anything, she should let him know. He had no further contact with the probation officer until March 12, 1980.
On March 11, 1980, the probation officer, seeking to verify that appellant was employed, made a telephone call to appellant's residence. Appellant was residing at the home of his mother and father, and his mother answered the telephone. During the course of the conversation, appellant's mother stated that she had found something in a notebook*fn1 in her son's room which alarmed her. She did not
[ 294 Pa. Super. Page 474]
state what it was. The probation officer told the mother that, as a part of her duties in ensuring appellant's compliance with the terms of his probation, she was to conduct a search of appellant's residence, and that she would do so no later than the following day and would then inspect what it was that appellant's mother had found.
Following the telephone conversation, Ms. Bryan told her supervisor what the mother had said, a staff meeting was held, and it was decided that Ms. Bryan should conduct a search, should examine the notebook, and should bring the notebook back to her office and copy any portion revealing a violation of probation.
On the same day, March 11, 1980, the probation officer went to the appellant's home and was admitted by his mother. His mother expressed apprehension that a search was being conducted in appellant's absence, and the probation officer explained that she was authorized to make such a search and to make it without a search warrant.
Appellant's mother then took Ms. Bryan to the room where appellant slept and kept his things. Ms. Bryan conducted a search of the room. The notebook the mother had referred to was identified by her as being one found by Ms. Bryan in the drawer of the nightstand. Ms. Bryan glanced through it briefly, but being pressed for time, told appellant's mother she would take it to her office where she could read it at leisure and return it to the mother later. She told the mother she would copy "parts of it" and the mother consented. One of the thoughts that went through Ms. Bryan's mind when ...