Appeal from the Judgment of Sentence on July 10, 1986, in the Court of Common Pleas of Berks County, Criminal Division, at No. 85022601 OT No. B 296463-6.
Lawrence J. Hracho, Reading, for appellant.
Charles B. Coleman, Assistant District Attorney, Reading, for Com., appellee.
Cirillo, President Judge,*fn* and Beck and Hester, JJ.
[ 365 Pa. Super. Page 504]
This is an appeal from a judgment of sentence imposed by the Court of Common Pleas of Berks County following appellant's conviction for possession of controlled substances. Appellant contends that the trial court erred by failing to suppress evidence. The police had seized the evidence pursuant to a warrantless search of a private club which was licensed to serve alcohol by the Pennsylvania Liquor Control Board ("PLCB"). We agree that the police search in question was not authorized by the Liquor Code*fn1 and that items obtained as a result of this search should not have been admitted into evidence. Accordingly, we vacate judgment of sentence and remand for a new trial.
[ 365 Pa. Super. Page 505]
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. Weik, 360 Pa. Super. 560, 562, 521 A.2d 44, 45 (1987) (citing Commonwealth v. Eliff, 300 Pa. Super. 423, 428-29, 446 A.2d 927, 929-30 (1982)). Viewed in the light most favorable to the Commonwealth, the facts established by the record are as follows.*fn2
Appellant Adolph Black is the manager and trustee of the Second Story Lounge. The Second Story Lounge is a private club reserved for members of the Reading Veteran Volunteer Firemans' Association. The club is located on
[ 365 Pa. Super. Page 506]
the second floor of a building on Franklin Street in Reading, Pennsylvania.
In order to gain admittance to the club, one must first enter a vestibule, ring a buzzer, and display identification as to membership to a doorman seated behind a sliding partition. Behind the vestibule is a flight of stairs which leads to the second floor. On the second floor are a "back room" and a "front room" located at opposite ends of a corridor. The "back room" is an entertainment area where alcoholic beverages are served to club members. The "front room" is listed as a card room on the PLCB's forms and is part of the premises licensed for the sale of alcohol. The "front room", however, is actually an apartment which was used by appellant as his personal office.
In 1984, Agent Jan F. Llewellyn, an enforcement officer for the PLCB, was assigned to investigate a complaint concerning the Second Story Lounge. This complaint was based on information relayed to the PLCB by the Vice Division of the Reading Bureau of Police. Agent Llewellyn contacted the vice squad office and requested that municipal police participate in an "open inspection" of appellant's club. He later stated that the purpose of this inspection was to check for "possible minors and to establish the names of individuals who were working on the premises that evening." R.R. at 8a.
At 4 A.M. on December 15, 1984, Vice Squad Police Officer Richard Garipoli accompanied several PLCB investigators on an unannounced inspection of appellant's club. Officer Garipoli did not secure a warrant beforehand. He proceeded directly to appellant's office and entered without first obtaining appellant's consent. The officer noticed appellant standing next to a table on which he observed in plain view items which the officer believed to be small amounts of marijuana, cocaine, and methamphetamine. The officer then departed; he returned with a valid search warrant at 5 A.M. and seized the suspected contraband.
Appellant was arrested and charged with offenses under the Controlled Substance, Drug, ...