No. 40 W.D. Appeal Dkt. 1983, Appeal from the Order of the Superior Court at No. 505 Pittsburgh, 1981, filed May 28, 1982, reversing the Order of the Court of Common Pleas of Allegheny County, filed April 21, 1981, at No. CC 8007040A.
Robert L. Simmons, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Melinda G. Tell, Asst. Dist. Atty., Pittsburgh, for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Roberts, C.j., concurs in the result, as does Nix and Larsen, JJ. Zappala, J., files a dissenting opinion.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
This is an appeal from the order of the Superior Court, reversing an order of the Court of Common Pleas of Allegheny County suppressing evidence obtained in a search of appellant's residence.*fn1 After examination of appellant's claim we affirm.
The facts are as follows. On the morning of September 5, 1980, Lieutenant Charles E. Coughlin of the McKeesport Police Department prepared an application for a search warrant for the premises of appellant, Roy L. Hamlin. The probable cause relied upon in securing the warrant was
testimony from neighbors that ten (10) to twenty (20) persons visited the residence on a daily basis and only stayed for a short period of time. Later that same day at approximately 1:30 p.m. the application was taken to the district magistrate. The warrant was then approved and the date of issuance was recorded as September 6, at 8:00 a.m. This date and time started the forty-eight (48) hour period during which the search warrant had to be executed. See Pa.R.Crim.Pro. 2005.*fn2 The search was scheduled to take place at 7:00 a.m. on September 6. The police arrived at appellant's residence at 7:45 a.m. on that same date. Lieutenant Coughlin knocked on the exterior door of the complex in which appellant lived. Receiving no response Lieutenant Coughlin proceeded into the main building and knocked on appellant's door. After continued knocking and unanswered requests to have appellant open the door, Lieutenant Coughlin used a key supplied by the landlord to gain access. Appellant and a Ms. Dreher (co-defendant) were in the room. Lieutenant Coughlin identified himself and provided appellant with a copy of the warrant. A search of the premises resulted in the seizure of a quantity of controlled substances and drug paraphernalia. The occupants were arrested. Appellant and co-defendant filed joint omnibus pre-trial motions to suppress the seized evidence.
On March 25, 1981, the Commonwealth proceeded to a suppression hearing on the co-defendant's motion. After receiving testimony from both Lieutenant Coughlin and
Howard Lindberg, the issuing magistrate, the suppression court granted the motion to suppress. Judge Louik, the suppression court judge, stated at the hearing that he was not finding that the error was done purposely, but nevertheless, given the improper execution of the warrant, he was going to grant defendant's suppression motion (S.T. 39-42). The Commonwealth appealed. On appeal the Superior Court, in a two to one decision, rejected the findings of the lower court and reversed, holding that the ...