No. 2775 Philadelphia 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Delaware County at No. 6142 of 1980.
Donald E. Havens, Upper Darby, for appellant.
Helen T. Kane, Assistant District Attorney, Media, for Commonwealth, appellee.
Hester, Johnson and Popovich, JJ.
[ 312 Pa. Super. Page 104]
This is an appeal from the Judgment of Sentence imposed upon appellant, Walter Edward Freeman, for violating 18 Pa.C.S.A. § 5512 (Lotteries, etc.) and 18 Pa.C.S.A. § 5513 (Gambling devices, gambling, etc.)*fn1 by Judge Melvin G.
[ 312 Pa. Super. Page 105]
Levy of the Court of Common Pleas of Delaware County. We reverse.
Viewing the evidence presented to the court below in a light most favorable to the Commonwealth, the verdict winner, Commonwealth v. Coe, 226 Pa. Super. 594, 323 A.2d 213 (1974), the following facts were established: At approximately 3:00 p.m. on the 12th of November, 1980, Pennsylvania State Trooper Donald L. Fredericks, along with Detective Greg Seltzer and other police personnel, executed a search warrant for the residence of Frank and Delores Miller, located at 1000 Conchester Highway, Chester, Pa. The procedure followed consisted of Trooper Fredericks knocking on the door and announcing his identity and purpose. With this, appellant opened the door and was shown identification by Trooper Fredericks, as well as being told that the police had a search warrant for the residence. Appellant was asked if anyone else was on the premises. He advised Trooper Fredericks that Mrs. Miller, his mother-in-law, was the only other person present and she was sick in bed. This was confirmed by the police. Then, appellant was taken to the living room and was read the content of the warrant while the premises were being searched. At one point during this investigation, Detective Seltzer asked Trooper Fredericks if he would go back to the vehicle to get a box which had a camera and film. After Trooper Fredericks had retrieved the box and was returning to the residence, he "noticed a trashcan located near the garage door of the residence. And there was smoke coming from the trashcan." (N.T. 10) The Trooper, after tipping over the 25 to 50-gallon container, observed "numbers and tallies on sheets of paper."*fn2 (N.T. 11) There was nothing else in the trashcan, other than the couple of hundred sheets of paper. (N.T. 40) Thereafter, Trooper Fredericks doused the
[ 312 Pa. Super. Page 106]
flames with wet towels secured from inside the home and yelled to Detective Seltzer that he had found "evidence outside burning." The contents of the trashcan were placed in a bag by Trooper Fredericks, who, in turn, arrested appellant and Mrs. Miller and gave them their Miranda rights.
Next, the police, after having completed their search, were about to leave when Mr. Miller arrived. He was informed of what had transpired. Despite Mr. Miller advising Trooper Fredericks that Mrs. Miller was sick and suffering from a bad back, the Trooper stated that those arrested would be processed at the Pennsylvania State Police barracks and later arraigned. At this time, appellant admitted to Trooper Fredericks that, as for the evidence seized, he had "placed it in a trashcan and set it on fire." (N.T. 30) As a result of this admission, only appellant was transported to the police station and charged with the commission of various offenses involved with the operation of a lottery and gambling devices. See note 1, supra.
Following a preliminary hearing, appellant was held over for court. Thereafter, appellant's suppression motion was denied and trial, without a jury, was conducted. After the entry of a guilty verdict, post-trial motions were denied and appellant was sentenced. This appeal followed.
The appellant asserts that the lower court erred: 1) in not suppressing his inculpatory statement; 2) in admitting the inculpatory statement into evidence without first having the prosecution establish the corpus delicti of the offenses; 3) in failing to sustain his counsel's demurrer to the charges; and 4) in imposing a sentence of total confinement.
As for appellant's argument regarding the suppressability of an inculpatory remark, we need first to review the circumstances attendant to his warrantless arrest.
An examination of the 16-page search warrant and receipt/inventory sheet nowhere reveals appellant's name. For example, in that portion of the warrant requesting the "Name of owner, occupant or possessor of said premises to
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be searched . . .," there appears the appellation: "Frank H. Miller, Delores Miller, Patricia nee [sic] Miller Fontaine, Otto Fontaine." The probable cause section is no more illuminating, for that portion of the warrant only gives an accounting of "an investigation into the Frank Miller gambling organization for a period expanding over two years." Although the affiants meticulously list the dates that the Miller's phone was wiretapped, and in some cases the content of the conversations and names of those participating therein, appellant's name does not appear anywhere in the warrant. Also, during the 2-year period that Frank Miller was being investigated and his residence placed under surveillance, appellant was not mentioned among those associating with the Miller organization. Thus, given the state ...