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COMMONWEALTH PENNSYLVANIA v. ANTHONY MENGINIE (03/31/83)

filed: March 31, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY MENGINIE, APPELLANT



No. 2910 Philadelphia 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Delaware County at No. 2814 of 1979.

COUNSEL

Stephen H. Serota, Philadelphia, for appellant.

Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.

Wickersham, Brosky and Wieand, JJ. Wieand, J., concurs in the result.

Author: Wickersham

[ 312 Pa. Super. Page 296]

This appeal arises from Anthony Menginie's challenge to his conviction on several counts of receiving stolen property and various other offenses. Specifically, Menginie was charged with receiving stolen property, possessing instruments of crime, tampering with records, dealing in vehicles with removed or falsified identification numbers, and removing or falsifying vehicle identification numbers, as well as drug related offenses. Before trial, Menginie's counsel

[ 312 Pa. Super. Page 297]

    filed an omnibus motion pursuant to Rule 306 of the Pennsylvania Rules of Criminal Procedure.*fn1

The omnibus motion sought the suppression of physical evidence and any statements made by Anthony Menginie. After a hearing, the Honorable R. Barclay Surrick granted the motion to suppress a statement Menginie made but denied the motion to suppress physical evidence. The case was tried before the Honorable Henry V. Scheirer and a jury; Menginie was convicted of the theft related offenses with which he had been charged, but was acquitted of the drug charges.*fn2

Post-trial motions for a new trial and in arrest of judgment were filed, alleging several errors in the suppression hearing and at trial. The court denied the post-trial motions and sentenced Menginie to an aggregate term of imprisonment

[ 312 Pa. Super. Page 298]

    of from two to five years as well as payment of a fine and restitution. This appeal timely followed.

On March 30, 1979 officers from the Upper Darby Police Department responded to a reported shooting at 214 North Linden Avenue, Upper Darby. Anthony Menginie was found bleeding on the lawn of a house several doors away from 214 North Linden Avenue. Menginie told the police that he had been shot by his brother Russell Menginie and that Russell was in the house at 214 North Linden.

When the police entered the house they saw Russell Menginie slumped against the wall in an upstairs hallway, with a handgun at his side. Unaware at the time that Russell Menginie had died from a self-inflicted gunshot wound, a police officer kicked the gun away from Russell Menginie. The gun landed in a bedroom and the officers entered the bedroom to secure the gun.

Once inside the bedroom the officers saw a scale and containers holding a white substance. The officers on the scene called for assistance from one Officer Ceccola, a narcotics officer of the Upper Darby Police Department. Officer Ceccola suspected that the white powder was either methamphetamine or cocaine and obtained a search warrant. This warrant authorized a search of the premises for drugs, drug paraphenalia and other evidence indicating that 214 North Linden Avenue was used to distribute drugs.

As they executed the first warrant the police discovered numerous motorcycles and motorcycle parts. They also found an improperly removed serial number plate from a Harley-Davidson motorcycle, an open certificate of title for a Harley-Davidson motorcycle and a notary public seal issued to an unknown person who did not live at 214 North Linden. The Upper Darby police concluded that the premises were also the site of a motorcycle "chop shop" and called in the Pennsylvania State Police. State police troopers agreed that they had found a chop shop and obtained another warrant. The second warrant authorized a search of the premises for stolen motorcycles and motorcycle

[ 312 Pa. Super. Page 299]

    parts, tools used to remove vehicle identification numbers and documents relating to ...


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