No. 2447 Philadelphia, 1980, No. 64 Philadelphia, 1981, Appeals from the Judgments of Sentences of the Court of Common Pleas, Criminal Section, of Delaware County at Nos. 5434 of 1979 and 4224 of 1979.
John W. Nails, Chester, for appellant.
Helen Kane, Assistant District Attorney, Media, for Commonwealth, appellee.
Spaeth, Beck and Lipez, JJ.
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This case rises on two appeals, which have been consolidated. Each appeal is from a judgment of sentence for engaging in a lottery in violation of 18 C.P.S.A. 5512. On the first appeal, Case No. 4224 below, we affirm. On the second, Case No. 5434 below, we reverse and award a new trial because the prosecutor's closing address exceeded the limits of propriety.
On August 6, 1979, Sergeant Conway, the officer in charge of the vice unit of the Chester Police Department, received information that "Jane Doe," for whom the police had a warrant, had been seen at appellant's store at 1726 West 3rd Street in Chester. Acting on this information, Sergeant Conway and Officers Blythe and Jones drove past appellant's store, and saw a woman matching the description of Jane Doe standing outside. The officers parked their car and walked towards the store. Officer Jones entered first by following a man who knocked prior to entry. Inside the store he saw three men, including appellant. On the store's counter, nearest appellant, were four slips of paper and some cash. No one saw appellant take the cash, but the cash disappeared and Officer Jones, who was watching the other two men, testified that neither of them had touched it. After a moment or so, the other officers entered. Sergeant Conway looked at the slips on the counter and decided that they were "illegal lottery plays." N.T. 12/5/79, 59. One of the other officers told him that appellant "should have money in his pocket." Id., 58. The sergeant "advised [appellant] that he was under arrest and had him dump his pockets out on the counter." Id., 59. Appellant had $140.15. Id. The plays on the slips added up to $113. Id., 97.
In questioning the sergeant at trial, counsel for appellant suggested that the slips on the counter were the work of a numbers player, not of a writer. Id., 70 et seq. However, the jury resolved this issue against appellant. Appellant argues that the sergeant's admissions that "There could be another explanation for the duplications [of numbers
[ 304 Pa. Super. Page 540]
on the slips] other than the fact that the possessor of those slips was a number writer" rendered the evidence insufficient, Brief for Appellant at 20, but despite some concessions, the sergeant remained firm in his opinion, and we think this issue too was for the jury. Appellant also argues that the evidence was insufficient "to show that [appellant] was the one in possession of the numbers," Brief for Appellant at 19, but again, given the evidence of appellant's proximity to the slips on the counter of appellant's store, we think this issue was for the jury, and that it was entitled to conclude that a lottery was in operation on appellant's premises and that appellant was engaged in it.
Appellant also argues that the "Jane Doe warrant" did not give the police authority to enter appellant's store. However, we need not consider the validity of the warrant.
It is well established that when an officer sees contraband or other objects in plain view and has not intruded into a constitutionally protected area, his observation is not a search within the meaning of the fourth amendment. Thus while an officer is not forced to disregard that which is patently clear to him, the doctrine is only applicable when he is in a place where he has a legal right to be. In the instant case, then, the essential issue is reduced to whether the interior of appellees' club [here, appellant's store] was a constitutionally protected area and whether the officers had a legal right to be inside the premises when they observed the gambling paraphernalia and effected the arrests. If they had such a right, then their observation of the gambling paraphernalia was sufficient to form probable cause to arrest and seize the immediate evidence.
Commonwealth v. Weimer, 262 Pa. Superior Ct. 69, 73-74, 396 A.2d 649, 651 (1978) (citation omitted).
Appellant argues, however, that his store was a "constitutionally protected area." In support of this argument, he asserts that "a special knock was required [to gain entrance]." Brief for Appellant at 16.
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In order for . . . constitutional protection to attach . . . the individual must harbor a reasonable and justifiable expectation of privacy within the area in question. The reasonableness of one's expectations will necessarily turn on the facts in the individual case evincing the strength of that belief and the measures taken to ensure privacy. Id.
Appellant's assertion that a special knock was required, and that that demonstrates his expectation of privacy, is belied by one of appellant's own witnesses, who testified that appellant was running a public store:
Q. Mr. Hughes, what were you doing in this place?
A. Well, we just hang out there, buy cigarettes and soda.
Q. How many people hang out there?
A. Oh, I couldn't tell you that. That's a public place a storefront.