No. 72 Pittsburgh, 1980, Appeal from the Order of the Court of Common Pleas of the 37th Judicial District, Warren County Branch, Criminal Division, dated December 27, 1979, at No. 234 of 1979.
Richard A. Hernan, Assistant District Attorney, Warren, for Commonwealth, appellant.
Joseph C. Barnhart, Tionesta, for appellee.
Price, Cavanaugh and Hoffman, JJ. Hoffman, J., files a dissenting statement.
[ 308 Pa. Super. Page 91]
The court below granted appellee, Steven Zock, a new trial after a jury found him guilty of possession of marijuana
[ 308 Pa. Super. Page 92]
with intent to deliver. The new trial was granted because evidence admitted against Zock was allegedly the product of an illegal search by police officers.
On May 16, 1979, two Pennsylvania State Police Troopers went to the residence of William Jackson for the purpose of serving an arrest warrant on him for a drug charge. Upon arrival, Trooper Mechling observed appellee Zock, whom he knew, walking rapidly into Jackson's residence. Trooper Rain was met at the front door by Stephen L'Angelo who advised Trooper Rain that he was in charge of the premises and that Jackson was not at home. L'Angelo permitted the officers to enter the premises to search for Jackson.
In an upstairs bedroom, the troopers found in plain view twenty-two clear plastic bags, each containing about one pound of marijuana. The officers seized the marijuana, placed it in the police car, and secured the premises, ordering the approximately ten persons in the house to gather on a front porch -- terrace area. Corporal Lynn arrived to aid the officers, and Trooper Rain was dispatched to apply for a search warrant to search the remainder of the premises. Lynn positioned himself to watch one door and Mechling positioned himself to watch the only other door. While the premises were thus secured pending arrival of a search warrant, appellee, a friend of Trooper Mechling, asked Mechling for permission to clean up the yard. Mechling granted Zock's request.
Shortly thereafter, several of the remaining individuals gathered around Trooper Mechling and kept his attention. Mechling then noticed Zock running away from the officers and into the woods. Mechling saw that Zock was carrying three suitcases, one of which he recognized as having been in the bedroom from which the marijuana in plain view had been seized. The officer chased and apprehended Zock in the woods. Mechling noticed that there was a ladder leading to a second floor bedroom at the rear of the building from which Zock had run toward the woods. Zock and the three suitcases were returned to the porch -- terrace area to await the arrival of Trooper Rain with the search warrant.
[ 308 Pa. Super. Page 93]
When Trooper Rain returned, the warrant was served and the suitcases were opened. The suitcases contained a total of twenty six clear plastic one pound bags of marijuana. Appellee was then ...