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COMMONWEALTH PENNSYLVANIA v. THOMAS ALLEN RISPO (01/25/85)

filed: January 25, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS ALLEN RISPO, APPELLANT



No. 00088 PHL 83, Appeal from the Judgment of Sentence of December 9, 1982 in the Court of Common Pleas of Bucks County, Criminal Division, at No. 3427/1980.

COUNSEL

Richard P. Abraham, Philadelphia, for appellant.

Seth Weber, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Del Sole, Montemuro and Hoffman, JJ. Montemuro, J., files a dissenting statement.

Author: Hoffman

[ 338 Pa. Super. Page 226]

Appellant contends that the lower court should have suppressed the evidence seized when law officers, without a warrant, entered his home to retrieve certain property and

[ 338 Pa. Super. Page 227]

    arrested him. We agree and, accordingly, vacate the judgment of sentence, and remand for a new trial.

On September 5, 1980, appellant was arrested in his home located at 1130 Tennis Avenue in Bensalem Township. He was subsequently charged with possession of a controlled substance, possession of a controlled substance with intent to deliver, delivery of a controlled substance, and conspiracy to possess, possess with intent to deliver, and deliver a controlled substance. On March 16, 1981, appellant's motion to suppress evidence was heard and denied. Jury trial commenced the next day and, on March 20, appellant was convicted of conspiracy but acquitted on the remaining charges. Appellant's post-verdict motions alleged, inter alia, that certain evidence seized in the illegal search and seizure should have been suppressed. Appellant, represented by new counsel, also filed a supplemental motion raising the issue of trial counsel's ineffectiveness. On December 3, 1981, the lower court en banc denied the post-verdict motions. After several hearings, the lower court, per Judge Biehn, denied the ineffectiveness motion on November 8, 1982. Appellant was then sentenced on December 9, 1982, to four-to-twenty-three months imprisonment. This appeal followed.

The scope of our review of the denial of a motion for suppression of evidence is firmly established. The suppression court must make findings of fact and conclusions of law in determining whether evidence was obtained in violation of the defendant's rights. The burden of proving the admissibility of the evidence lies on the Commonwealth's shoulders; the standard by which the court determines the legitimacy of the search and seizure, and hence the admissibility of the evidence whose suppression has been moved, is that of the preponderance of the evidence . . . . On appeal we must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonability of any inferences and legal conclusions drawn from the court's findings of fact.

[ 338 Pa. Super. Page 228]

. . . .

In considering whether the record supports the court's finding [sic] of facts we must restrict ourselves to reviewing the evidence presented by the Commonwealth and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. . . . In addition, where the suppression court's findings are amply supported by the record they may not be disturbed on appeal. . . . Finally, in deciding whether Fourth Amendment dictates have been abridged, we must consider all of the circumstances of the official intrusion, keeping firmly in mind that the ultimate goal of the Amendment is not the protection of preferred locales, but the protection of individuals and their legitimate expectations of privacy . . . .

Commonwealth v. Eliff, 300 Pa. Superior Ct. 423, 428-29, 446 A.2d 927, 929-30 (1982) (citations omitted).

So viewed, the facts are as follows: On September 5, 1980, at approximately 2:30 p.m., Jimmy Baker, a paid police informant, went to the Lower Moreland Police Station to meet two narcotics agents from the Bureau of Drug Control of the Pennsylvania Attorney General's Office and other police officers. Baker was then fitted with a body wire, given $11,000 in marked currency (the serial numbers of the bills had been previously recorded by the agents), and placed under electronic surveillance from a police van. At approximately 4 p.m., Baker left the station for a prearranged meeting with Gary Christopher, a hairdresser, at the Cosmic Hair Studio located on Bustleton Avenue in the Northeast section of Philadelphia, in order to purchase one pound of methamphetamine. Agents Randolph Bordeleau and William Miller followed in the police van while Agent Steven Richardson followed in a separate vehicle. Baker ...


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