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COMMONWEALTH PENNSYLVANIA v. SCOTT A. WEIK (02/10/87)

filed: February 10, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
SCOTT A. WEIK, APPELLANT



Appeal from the Judgment of Sentence of June 25, 1986 in the Court of Common Pleas of Lebanon County, Criminal Division, at No. 327, 1985.

COUNSEL

Peter D. Maynard, Reading, for appellant.

Rosamond A. Presby, Assistant District Attorney, Lebanon, for Com., appellee.

Tamilia, Hoffman and Hester, JJ.

Author: Hoffman

[ 360 Pa. Super. Page 561]

This is an appeal from the judgment of sentence for maintaining a slot machine for gambling purposes, 18 Pa.C.S.A. § 5513(a)(1). Appellant contends that the lower court erred in refusing to suppress evidence seized by police following a warrantless entry into a building on his property. We agree and, accordingly, vacate the judgment of sentence and remand for a new trial.

Appellant was charged with maintaining a slot machine for gambling purposes, in violation of 18 Pa.C.S.A. § 5513(a)(1). Prior to trial, appellant moved to suppress the slot machine that was seized pursuant to a warrantless entry of a building on his property. The motion was denied, and appellant was later found guilty following a jury trial. Appellant was sentenced to a twenty-three-month term of probation, and this appeal followed.

[ 360 Pa. Super. Page 562]

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 . . . .

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 . . . .

Commonwealth v. Eliff, 300 Pa. Superior Ct. 423, 428-29, 446 A.2d 927, 929-30 (1982) (citations omitted). See also Commonwealth v. Rispo, 338 Pa. Superior Ct. 225, 227-28, 487 A.2d 937, 938 (1985).

Viewed in the light most favorable to the Commonwealth, the facts are as follows:

In the early morning hours of April 28, 1985, two North Lebanon Township police officers saw a bonfire on appellant's property. Suspecting that the fire was in violation of a local ordinance, the officers returned to the police station, discovered that appellant did not have a permit for such a fire, and determined that he was in violation of the ordinance. The officers therefore returned to appellant's property, saw that the fire was still burning, and entered onto the property to tell appellant to extinguish it. A house, a

[ 360 Pa. Super. Page 563]

    detached garage, and a detached shed are located on appellant's property. As they approached, the officers saw appellant walk away from the fire and enter the shed. There were windows in the shed which were not covered by curtains. Through the uncovered windows, the officers saw three slot machines against a wall, and saw a companion of appellant attempting to cover the machines. Appellant then walked out of the shed and approached the officers. The officers told appellant that they were there to investigate the fire, but that they had also seen the slot machines. The ...


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