Appeal from the Order of the Court of Common Pleas, Criminal Division, of Delaware County at No. 6547 of 1984.
Dennis C. McAndrews, Assistant District Attorney, Wayne, for Com., appellant.
Michael P. Dignazio, Media, for appellee.
Wickersham, Wieand and Popovich, JJ. Wieand, J., files a dissenting opinion.
[ 353 Pa. Super. Page 465]
Joseph Stanley Morgan went to trial on March 26, 1985 before the Honorable Joseph T. Labrum, J. and a jury and was convicted of possession and possession with intent to deliver controlled substances (159 milligrams of methamphetamine).
On October 12, 1984 county detectives and other law enforcement officers executed a search warrant at 249 West Chelton Road, Delaware County, the address of defendant Morgan. Omnibus pretrial motions were filed raising issues regarding the legality of the search and seizure. A suppression hearing was held February 13, 1985, and pre-trial motions were denied. On August 9, 1985 Judge Labrum granted the defendant's post-trial motion for a new trial. The Commonwealth appeals and raises one issue:
A. Did the trial court err in granting the defendant's post-verdict motion to overturn its pre-trial determination that the seizure of evidence from the defendant's home was proper?
Brief for Appellant at 3.
In an opinion filed October 3, 1985 Judge Labrum explains his grant of a new trial, thusly:
[I]n its Amended Findings of Fact, the Court found that the Officers violated Pa.R.Cr.P. 2007 and the applicable case law in the execution of the Search Warrant.
Pa.R.Cr.P. 2007 provides:
"(a) A law enforcement officer executing a Search Warrant shall, before entry, give, or make reasonable effort to give notice of his identity, authority and purpose to any occupant of the premises specified in the Warrant, unless exigent circumstances require his immediate forcible entry.
"(b) Such Officer shall await a response for a reasonable period of time after his announcement of identity, authority and purpose, unless exigent circumstances require his immediate forcible entry.
[ 353 Pa. Super. Page 466]
"(c) If the Officer is not admitted after such reasonable period, he may forcibly enter the premises and may use as much physical force to effect entry therein as is necessary to execute the Search."
Absent exigent circumstances sufficient to justify an Officer's failure to comply with Pa.R.Cr.P. 2007, evidence seized pursuant to a Search must be suppressed. Commonwealth v. Golden, 277 Pa. Super. 180, 419 A.2d 721 (1980). The cases which turn on the entry of Police Officers into premises for the purpose of executing a Search Warrant are based on the reasonableness of the conduct of the Officers and have set forth exceptions to the requirements that the Officers announce their identity and purpose and await a reasonable time before entry into the premises. The exceptions are (1) Facts known to the Officers making them virtually certain that the occupants of the premises know their identity and purpose, thus making an announcement a "useless" gesture; (2) Facts indicating the requirement if executed would cause peril to the life and limb of the Officers; (3) Facts known to the Officers justifying a reasonable belief that evidence is about to be destroyed. Commonwealth v. Johnson, 223 Pa. Super. 83, 289 A.2d 733 (1972).
In the present case, Officer John Gretsky of the Chester Police Department received information from a reliable informant that drugs were illegally kept at the Defendant's residence, such information being received on or about October 10, 1984. Based on such information an affidavit of Probable Cause for the obtaining of a Search Warrant was prepared and a Search Warrant obtained. On October 12, 1984, at approximately twelve o'clock Noon, Detectives DiRomualdo and Greenwalt, both in plain clothes approached the Defendant's home and knocked on the screen door, the inner door being open. ...