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filed: June 11, 1982.


No. 205 March Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Franklin County, at No. 465 of 1977.


Edwin D. Strite, Jr., Assistant Public Defender, Chambersburg, for appellants.

John F. Nelson, Chambersburg, for Commonwealth, appellee.

Cercone, President Judge, and Watkins and Montgomery, JJ. Watkins, J., dissents.

Author: Cercone

[ 300 Pa. Super. Page 426]

Appellants were charged with possession of a controlled substance with intent to deliver, 35 P.S. § 780-113(a)(30)*fn1

[ 300 Pa. Super. Page 427]

    and criminal conspiracy, 18 Pa.C.S. § 903.*fn2 In their omnibus pre-trial motions appellants sought to suppress the Commonwealth's evidence against them contending that it had been variously obtained in violation of their Fourth Amendment right "to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures." U.S.Const., 4th Amend. In their motions to suppress, appellants contended that the entry into their residence to arrest appellant Hogle on unrelated charges was (1) illegally effectuated because it was done without a valid warrant for his arrest, and (2) without a valid warrant authorizing a search of the premises, and (3) in the absence of exigent circumstance obviating the need for warrants. They also argued that the entry to effectuate the arrest was improperly executed and that their right to be free from unreasonable intrusions by the state was violated thereby. They further contended that the evidence obtained pursuant to search warrants issued subsequent to the initial entry was "fruit of the poisonous tree," Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and therefore subject to suppression. Appellant Eliff individually contended that certain statements he made were suppressible because of the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1967), and Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). Appellant Bechtold separately contended that the search of his room was improper because the room was a separate dwelling and not properly within the scope of the search warrant. The suppression court denied the motions for the suppression of the evidence. The cases against appellants were tried jointly before the same

[ 300 Pa. Super. Page 428]

    judge who heard the motion for suppression, and without the aid of a jury. The court found defendants guilty on all counts and sentenced each of them to prison terms of one to five years plus fines on the drug charges and probation on the conspiracy convictions to run consecutively to the prison terms. It is from these judgments of sentence that the instant appeal comes before us.

The scope of our review of the denial of a motion for suppression of evidence is firmly established. The suppression court must make findings of fact and conclusions of law in determining whether evidence was obtained in violation of the defendant's rights. The burden of proving the admissibility of the evidence lies on the Commonwealth's shoulders; the standard by which the court determines the legitimacy of the search and seizure, and hence the admissibility of the evidence whose suppression has been moved, is that of the preponderance of the evidence. Pa.R.Crim.P. 323(h). On appeal we must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonability of any inferences and legal conclusions drawn from the court's findings of fact. Commonwealth v. Goodwin, 460 Pa. 516, 522, 333 A.2d 892, 895 (1975); Commonwealth v. Bundy, 458 Pa. 240, 328 A.2d 517 (1974); Commonwealth v. Sharpe, 449 Pa. 35, 296 A.2d 519 (1972); and see Commonwealth v. Burgwin, 254 Pa. Superior Ct. 417, 386 A.2d 19 (1978) (Opinion in Support of Reversal, per Price, J.).

[ 300 Pa. Super. Page 429]

In considering whether the record supports the court's finding of facts we must restrict ourselves to reviewing the evidence presented by the Commonwealth and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. O'Bryant, 479 Pa. 534, 537, 388 A.2d 1059, 1061 (1978); Commonwealth v. Hughes, 477 Pa. 180, 383 A.2d 882 (1978); Commonwealth v. Seibert, 274 Pa. Superior Ct. 184, 418 A.2d 357 (1980). In addition, where the suppression court's findings are amply supported by the record they may not be disturbed on appeal. Commonwealth Page 429} v. O'Bryant, supra; Commonwealth v. Bundy, supra; Commonwealth v. Seibert, supra. Finally, in deciding whether Fourth Amendment dictates have been abridged, we must consider all of the circumstances of the official intrusion, keeping firmly in mind that the ultimate goal of the Amendment is not the protection of preferred locales, but the protection of individuals and their legitimate expectations of privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Moreover, only those with "actual standing" will be heard to complain of alleged Fourth Amendment violations. See United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 68 L.Ed.2d 619 (1980); Commonwealth v. Sell, 288 Pa. Superior Ct. 371, 432 A.2d 206 (1981).*fn3

The Facts

In July of 1977 Agent Joseph Bilansky of the State Bureau of Drug Control began an investigation into the trafficking of illicit drugs in the vicinity of Chambersburg, Franklin County. Among the objects of the investigation were a certain farmhouse in Letterkenny Township and its occupants. On or about July 28, 1977, appellant Hogle, one of the residents of the farmhouse under surveillance, sold an unspecified quantity of marijuana to Agent Joel Hicks, an undercover agent working under the direction of Agent Bilansky. The sale was accomplished in the parking lot of a fast-food restaurant in Chambersburg. Following the purchase of the marijuana from appellant Hogle, Agent Hicks informed Agent Bilansky and Officer Thomas of the Chambersburg Police Department of the transaction. On October 26, 1977 Officer Thomas swore out warrants for Hogle's arrest based on the information he had obtained from Agent Hicks.*fn4 The following day Agent Bilansky met Officer

[ 300 Pa. Super. Page 430]

Thomas, whereupon the latter informed Agent Bilansky of the warrants for Hogle's arrest. The two discussed the method they would use in effectuating Hogle's arrest. They decided that they could effectuate the arrest without assistance if they found Hogle at his mother's home in Chambersburg, but that they would need additional manpower to arrest him if they were obliged to do so at the Letterkenny Township farmhouse, because of the occupancy of the house by several persons.

They proceeded to the home of Hogle's mother. She informed Agent Bilansky that Hogle was not to be found there, but rather, at the farmhouse. They arranged for assistance and agreed to meet the other officers at a rendezvous point near the farmhouse. Before arriving at the rendezvous point, Agent Bilansky and Officer Thomas drove past the farmhouse. The house was lighted and visible from the road. By spying through a first floor window as they drove past, both men were able to discern a group of several people gathered in one of the rooms. Agent Bilansky could not identify any of the occupants but Officer Thomas did observe Hogle among the group. Agent Bilansky and Officer Thomas met Agent Hicks, the undercover agent who made the marijuana purchase from Hogle, and four members of the Chambersburg Police Department, Detective Snively and Officers Haldemann, North and Manns, at the rendezvous point. The latter three were in full uniform. The group proceeded on foot to the farmhouse. Two uniformed officers took up preassigned positions outside the house intended to prevent Hogle's possible escape. The remainder of the group approached the farmhouse, with Agent Bilansky in the lead. He was wearing his badge on the outside of his denim jacket.

Perceiving the presence of intruders, some dogs kept on the premises raised sufficient ruckus that appellant Eliff, one of the residents of the farmhouse, came out onto the

[ 300 Pa. Super. Page 431]

    front porch to investigate, leaving the door into the livingroom slightly ajar behind him. Just as he emerged from the house Agent Bilansky and the others came onto the porch. Eliff inquired as to what was "going on," and Bilansky responded by flashing an identification card and stating that he had warrants for Hogle's arrest. Before Eliff could ask to see the warrant Agent Bilansky and the other law officers had entered the house by the same door through which Eliff had come onto the porch. By Agent Bilansky's own testimony no more than twenty seconds elapsed from the time he encountered Eliff until he crossed the threshold of the house. The officers ...

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