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COMMONWEALTH PENNSYLVANIA v. GARY THOMAS ALEWINE (03/27/89)

filed: March 27, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
GARY THOMAS ALEWINE



Appeal from the Suppression Order entered March 25, 1988, Court of Common Pleas, Allegheny County, Criminal Division at No. CC 8712383A.

COUNSEL

Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Com., appellant.

Wayne V. DeLuca, Pittsburgh, for appellee.

Brosky, Del Sole and Johnson, JJ. Brosky, J., files a dissenting opinion.

Author: Johnson

[ 384 Pa. Super. Page 285]

The Commonwealth of Pennsylvania appeals from an order granting Gary Thomas Alewine's motion to suppress the introduction of various gambling devices and paraphernalia into evidence at his trial on three counts of violating 18 Pa.C.S.A. § 5513(a) dealing with gambling devices and gambling. We reverse and remand.

On September 3, 1987 Trooper Andre Stevens entered the Office Lounge, a restaurant and bar owned by Alewine, and played two different poker machines. On both machines the officer achieved a score of forty free games. The barmaid rewarded Stevens for each win by giving him ten dollars. Stevens then observed the barmaid cancel the amount of free games indicated on the machines by use of two different types of "knock off" mechanisms. Stevens then placed a sticker onto the machines to identify these particular poker machines as the machines which he played. On the basis of this information, a search warrant was obtained on September 24, 1987 authorizing the search and

[ 384 Pa. Super. Page 286]

    seizure of gambling devices and gambling paraphernalia at the Lounge. On the same day a search of the Office Lounge was executed and authorities confiscated two poker machines carrying Stevens' mark, two unmarked video poker machines, three remote control switches and a cigar box containing money.

Alewine filed an Omnibus Pre-Trial Motion to suppress evidence confiscated at the lounge. On March 25, 1988 the trial court ordered that all evidence seized under the warrant be suppressed because the information upon which the search warrant was granted was stale. This appeal follows.

The Commonwealth raises the following arguments on appeal:

I. WHETHER THE COURT ERRED IN SUPPRESSING THE EVIDENCE ON THE GROUNDS THAT THE INFORMATION SET FORTH IN THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT WAS TOO STALE TO PROVIDE PROBABLE CAUSE?

II. WHETHER THE EXCLUSIONARY RULE SHOULD NOT APPLY BECAUSE THE POLICE IN EXECUTING THE SEARCH WARRANT WERE ACTING IN GOOD FAITH RELIANCE UPON AN ASSESSMENT OF PROBABLE CAUSE BY A NEUTRAL MAGISTRATE?

Review of a suppression order is limited to pure questions of law. Commonwealth v. Hamlin, 503 Pa. 210, 214, 469 A.2d 137, 139 (1983). When determining whether the trial court has misapplied the law, we must accept as true the findings of the trial court reasonably supported by the record, considering only that evidence presented by the defendant's witnesses and so much of the evidence of the prosecution that is fairly read into the context of the case as a whole and is uncontradicted. Id.

The existence of probable cause is determined by a consideration of all circumstances including the reliability of the proffered information, and the probability that the

[ 384 Pa. Super. Page 287]

    evidence sought will be found in the place to be searched. Commonwealth v. Weidenmoyer, 518 Pa. Super. 2, 7-9, 539 A.2d 1291, 1294 (1988). In particular, the chief factors to consider when determining whether the information supporting the issuance of a warrant has grown stale are the quality and nature of the seized evidence, the ease with which the evidence may be disposed of, and the lapse of time between the information and the ...


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