No. 1548 Philadelphia, 1981, Appeal from the Judgment of Sentence and the Order of the Court of Common Pleas, Criminal Division, of Montgomery County at No. 375-77.
Frederick W. McBrien, Norristown, for appellant.
Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Wickersham, Rowley and McEwen, JJ.
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This is an appeal from an order dismissing a suppression motion and affirming sentence. We also affirm. Appellant Ryan was arrested on January 18, 1977 and charged with ten counts of receiving stolen property, possession of an automobile
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with a defaced manufacturer's serial number, and criminal mischief in excess of $5000.00.
On May 17, 1977 appellant Ryan filed a petition to quash arrest and suppress evidence seized pursuant to two search warrants.
On June 15, 1977 Ryan's pre-trial motions were heard and dismissed; the case then proceeded to trial before Judge Robert W. Honeyman and a jury. On June 22, 1977 the jury returned a verdict of guilty on the ten informations charging theft by receiving stolen property.
Ryan subsequently filed motions for a new trial and in arrest of judgment alleging that his prior motion to suppress the evidence seized pursuant to the search warrants was improperly denied. These motions were dismissed and on August 26, 1977 appellant Ryan was sentenced to imprisonment for a term of not less than two and one-half (2 1/2) nor more than five (5) years.
Ryan then appealed to the superior court which found that the Commonwealth failed to carry its burden of proof at the suppression hearing on the evidence seized pursuant to the search warrants. Judgment of sentence was reversed and a new trial was granted. See Commonwealth v. Ryan, 268 Pa. Super. 259, 407 A.2d 1345 (1979).
The Commonwealth subsequently filed a petition for allowance of appeal with the Supreme Court of Pennsylvania. The supreme court remanded the case to the superior court with an order that the superior court determine whether its prior order was intended to direct the trial court to grant appellant Ryan's motion to suppress or rather to conduct a new suppression hearing. See Commonwealth v. Ryan, 489 Pa. 221, 414 A.2d 37 (1980).
The superior court, in compliance with the supreme court's order, remanded the case to the trial court with instructions that it conduct a new suppression hearing. If the trial court found that the evidence seized pursuant to the search warrants should not be suppressed then the judgment of sentence would stand affirmed and if, instead, the evidence or a
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part of it should be suppressed then the sentence would be vacated and a new trial held. Commonwealth v. Ryan, 277 Pa. Super. 262, 419 A.2d 762 (1980).
A suppression hearing was held in the Montgomery County Court of Common Pleas on November 18, 1980 before Judge Frederick B. Smillie. On May 22, 1981 Judge Smillie denied appellant Ryan's motion to suppress and affirmed the judgment of sentence. Ryan appeals from the trial court's order reaffirming the judgment of sentence.
The pertinent facts are as follows: On January 3, 1977 Detective Christopher Mower, a Philadelphia police officer, conducted an inspection of the titles and registrations of ownership of various vehicles at Lenny's Used Car Lot in Philadelphia. During his inspection Detective Mower found a 1969 Lincoln Continental on the premises with a defaced vehicle identification number. Further investigation revealed that the vehicle had been reported stolen by its owner.
Berle Fabrican, the manager of Lenny's Used Car Lot, informed Detective Mower that he had received the Lincoln from appellant Ryan, the owner of Connor's Used Auto Parts, a junkyard in Conshohocken, Pennsylvania. Fabrican was taken to the Philadelphia Police Headquarters where he called Ryan. Detective Mower spoke to Ryan during the call; Ryan stated that Mower was mistaken in his belief that the Lincoln was stolen and that he would be able to produce the title but that this would require a few days.
Later that same day Detective Mower, Officer Kane of the Philadelphia Police Department and Trooper Taylor of the Pennsylvania State Police went to appellant Ryan's junkyard and spoke to him concerning the stolen Lincoln found at Lenny's Used Car Lot. At first Ryan offered the officers permission to search his junkyard for parts of the Lincoln, however, he immediately revoked his offer when the officers indicated they would accept it.
Detective Mower and Trooper Taylor then left Ryan's junkyard and proceeded to the office of District Justice John
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T. Sachaczenski where Trooper Taylor obtained a search warrant to search Ryan's junkyard for the transmission, body parts, title inspection sticker, or other identifiable parts from the stolen Lincoln automobile.
During the subsequent search of appellant Ryan's junkyard the body of the stolen 1969 Lincoln was found. Record Suppression Hearing of November 18, 1980 at 27. The police officers also noticed a yellow 1975 Volkswagen parked on the grounds of Ryan's junkyard with its serial number plate in plain view. Subsequent investigation revealed that the Volkswagen had also been reported stolen. There were also many other vehicles and parts of vehicles with missing serial numbers which the officers observed at Ryan's junkyard in the course of their search.
Trooper Taylor recited the observations made in the course of the first search in his affidavit of probable cause for a second search warrant which he sought to permit a search of all the vehicles at appellant Ryan's junkyard. District Justice Sachaczenski found probable cause for the second search warrant and it was served on Ryan on January 4, 1977. The second search of Ryan's junkyard resulted in the seizure of numerous stolen vehicle parts which gave rise to the charges Ryan was convicted of instantly.
Appellant Ryan frames his first contention of error as follows:
Did the Superior Court of Pennsylvania's directive that a new Suppression Hearing be conducted by the lower court and the conduct of the second Suppression Hearing by the Court of Common Pleas of Montgomery County improperly afford the Commonwealth a second bite at the same apple?
Brief for Appellant at 2.
The double jeopardy clause does not protect against retrial for the same offense if the conviction is set aside through the defendant's procurement. Commonwealth v. Tabb, 491 Pa. 372, 421 A.2d 183 (1980). Here, the second suppression hearing was held pursuant to the order of the
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Superior Court which resulted from Ryan's prior appeal. Ryan procured the second suppression hearing by his appeal and he may not now complain that it was held.
Appellant Ryan frames his second contention of error as follows:
Did the Commonwealth's failure to produce the informant, Beryl [sic] Fabrican, constitute a denial of ...