No. 392 Pittsburgh, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, Butler County, at C.A. No. 529 Book 69, Page 22A.
William M. Panella, New Castle, for appellant.
Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.
Price, Johnson and Montemuro, JJ.
[ 308 Pa. Super. Page 454]
Following a bench trial in the Court of Common Pleas of Butler County presided over by the Honorable John C. Dillon, the appellant was found guilty of the crime of theft by unlawful taking or disposition, 18 Pa.C.S.A. § 3921(a). Appellant thereafter filed timely post-trial motions which were argued and denied. Appellant was sentenced to the maximum term of not less than three and one-half (3 1/2) years nor more than seven (7) years imprisonment and ordered to make restitution to the victim of the theft in the amount of eleven thousand fifty-nine ($11,059.00) dollars and directed to pay the costs of prosecution. The court subsequently denied appellant's timely filed motion to modify or vacate the sentence. This appeal is from the final judgment of sentence and for the reasons that follow we affirm the trial court's decision.
On Friday, September 7, 1979, James M. Brown, a truck driver who lived with his family in Butler County, parked his 1979 Mack tractor and Fruehauf trailer, loaded with twenty-one thousand (21,000) pounds of steel bars, on a lot owned by his friend on South Main Street, Zelienople Borough, Butler County. On Sunday morning, September 9, 1979, Brown's wife drove him to the location where he had left his tractor and trailer so that he could make delivery of
[ 308 Pa. Super. Page 455]
the steel bars to St. Louis, Missouri. The delivery would never be made. Mr. Brown discovered that his tractor and trailer worth approximately sixty-nine thousand eight hundred and ninety ($69,890.00) dollars, together with the load of steel worth approximately ninety-eight hundred ($9800.00) dollars, had been stolen. He reported the theft to the police in Zelienople Borough and completed a routine police report. On that same date, September 9, 1979, the Zelienople Police Department advised the police in neighboring Beaver County of the theft by voice communication and teletype. The department repeated the notification procedure on approximately September 21, 1979.
On September 28, 1979, police from Zelienople Borough, Butler County, police from North Sewickley Township, Beaver County, officers from the Sheriff's Department of Beaver County and two agents from the Federal Bureau of Investigation, numbering in all approximately eleven (11) police personnel, conducted a search on the authority of two (2) search warrants which had been issued on the same day by District Justice Arthur L. Schlemer of Beaver County. The premises designated on Search Warrant E-10879 to be searched were four (4) block and wood garages, three (3) wooden sheds and one (1) aluminum shed located at 1164 Chapel Drive, North Sewickley Township, Beaver County. The premises designated on Search Warrant E-10880 to be searched was a mobile home, white with brown trim located on a lane on the property of Harry Boots, 1164 Chapel Drive, North Sewickley Township, Beaver County. All of the premises to be searched were located on a farm which the tax maps indicated was owned by Harry Boots.
The items to be searched for in Search Warrant E-10879 were identified as a "Hobart Welder . . . and a truck said by Harry Boots to be stolen."*fn1 The item to be searched for in Search Warrant E-10879 was identified as a "color television set, Serial No. 2408 . . ." The probable cause for
[ 308 Pa. Super. Page 456]
issuing both warrants was based on information received from a confidential informant who observed the items on the premises on September 27, 1979, the day before the warrants were executed. The affiant on both warrants also stated that he had received information from the confidential informant over a period of seven years and that the information which proved to be reliable led to the conviction of three named individuals.
It is clear from the record that Mrs. Harry Boots, the widow of Harry Boots, owned the farm, the farmhouse, all of the garages and sheds and the mobile home. Mrs. Boots resided in the farmhouse, where she had lived with her late husband; the appellant and Mrs. Boots' daughter, Virginia Korn, resided in the mobile home.
Douglas E. Young, Chief of Police of North Sewickley Township, Beaver County, executed Search Warrant E-10879 by serving same on Mrs. Harry Boots at 12:10 P.M. on September 28, 1979, at the farmhouse. Mrs. Boots indicated she did not know what went on in the garages and sheds and that they were used by appellant with her permission. When informed that the outbuildings were padlocked, she gave her permission to force the locks open as she had nothing to hide.
At about the same time that Chief Young was executing Warrant E-10879, Clyde R. Anderson, Deputy Sheriff of Beaver County was serving Warrant E-10880 on Mrs. Virginia Korn, at the mobile home.
Chief Young and other officers forced the padlocks on the garage doors open and conducted a search. Although the Hobart Welder was never found, a Fruehauf trailer, with a load of steel bars was found in one garage and a partially disassembled 1979 Mack tractor was found in another garage. The trailer and tractor were later identified as the items stolen from Zelienople, Butler County, and belonging to Mr. James M. Brown. Three tool boxes bearing the appellant's initials were found in one of the garages as well. A GMC truck tractor, an attached trailer and a Budd trailer were found on the grounds outside a garage and they were
[ 308 Pa. Super. Page 457]
identified as being stolen in North Sewickley Township, Beaver County. Appellant's pick-up truck carrying miscellaneous parts removed from the stolen tractor trailer units was parked outside the mobile home. Later in the afternoon, the appellant made an incriminating statement, both orally and signed, whereby he admitted his role in the thefts.
When Deputy Sheriff Anderson, accompanied by two other officers, entered the mobile home, Virginia Korn was putting on a robe and appellant was putting on his pants. The officers found men's and women's clothing in the mobile home and also some guns which appellant claimed belonged to him. The officers also found a group of keys belonging to appellant and among these keys were keys which fit the padlocks on the garage doors wherein the stolen trailer and tractor were found. A stolen T.V. was also found in the mobile home but the serial number did not match the serial number on the warrant.
Appellant filed a timely omnibus pre-trial motion. The requested relief set forth in this motion asked the court to: (1) suppress appellant's statement; (2) declare Search Warrant E-10879 invalid; and (3) quash the Information. Following a full hearing on January 22, 1980, appellant's omnibus pre-trial motion was denied in its entirety. On January 23, 1980, after waiving his right to be tried by a jury, appellant was tried non-jury and was found guilty of the theft of Mr. Brown's tractor and trailer as well as the load of steel bars.
Appellant filed timely post-trial motions in arrest of judgment and/or for a new trial which were denied by the trial court. He was then sentenced to a term of imprisonment of 3 1/2 to 7 years and ordered to pay restitution in the amount of $11,059.00.
Appellant then filed a timely motion to modify and/or vacate his sentence. The trial court denied the motion.
In his appeal to this court from the judgment of sentence imposed by the Honorable John C. Dillon of the Court of
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Common Pleas of Butler County, appellant raises five claims of error committed by the trial court. We shall discuss them seriatim.
Appellant's first claim of error is that the trial court erred in allowing the Commonwealth to amend the information and thus refusing his motion to quash.
The Criminal Information reads as follows:
IN THE COURT OF COMMON PLEAS OF
Criminal Action, 1979 ...