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COMMONWEALTH PENNSYLVANIA v. THOMAS MCDERMOND (06/21/89)

decided: June 21, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
THOMAS MCDERMOND, APPELLEE



Appeal from Philadelphia County Common Pleas Court, Honorable Joseph D. O'Keefe, Judge.

COUNSEL

Jeffrey Hellman, Asst. Dist. Atty., William G. Chadwick, Jr., First Asst. Dist. Atty., Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Unit and Ronald D. Castille, Dist. Atty., Philadelphia, for appellant.

Dennis J. Cogan, Anthony J. Petrone, Philadelphia, for appellee.

Colins and Smith, JJ., and Kalish, Senior Judge.

Author: Colins

[ 127 Pa. Commw. Page 18]

The District Attorney's Office of Philadelphia, on behalf of the Commonwealth of Pennsylvania (Commonwealth), appeals from an order of the Philadelphia County Court of Common Pleas (trial court) which denied the Commonwealth's petition for forfeiture of Nine Thousand Two Hundred Twenty-five Dollars ($9,225.00) in currency.

On July 31, 1987, officers detailed to the City-wide Vice Unit of the Philadelphia Police Department went to 7850 Oxford Avenue for the purpose of executing a search

[ 127 Pa. Commw. Page 19]

    warrant on apartment No. 4. The warrant named Thomas McDermond (appellee), as well as any other person capable of maintaining an illegal bookmaking operation at that location as individuals to be searched, as well as the premises. Prior to the issuance of the warrant, the police conducted surveillance of appellee's apartment for a period of ten days from July 15th, 1987, to July 25, 1987. During this period, the police observed appellee's car parked outside 7850 Oxford Street during "prime betting" hours but not at other times. The police also telephoned apartment No. 4's two telephone numbers during this time. It was found that during "prime betting" hours the telephone was answered on each occasion on the first ring or immediately thereafter*fn1 but was not answered at any other times. Based upon these occurrences, the police concluded that an illegal gambling operation was being conducted from apartment No. 4, 7850 Oxford Avenue and sought a warrant for the premises.

When the police arrived at 7850 Oxford Avenue on July 31, 1987, they observed appellee leaving the building carrying a small cardboard box. Appellee got into his car and placed the box on the car seat beside him. Officer Joseph Alley approached appellee's vehicle and stopped appellee before he could pull away. A search of the box revealed tally work containing approximately $1,000,000.00 worth of bets, numerous pages of individual bets on various sporting events which corresponded to the tally work, point spreads for basketball games from March 28th to April 5th, a telephone bill for 7850 Oxford Avenue*fn2 and other bills and receipts. A search of appellee's person uncovered Four Thousand Two Hundred Twenty-five Dollars ($4,225.00) from his front pocket, Five Thousand Dollars ($5,000.00)

[ 127 Pa. Commw. Page 20]

    from his back pocket, and an apartment key. The police used the key to gain entrance to apartment No. 4 in order to search that premises.

Inside the apartment, the police found thousands of illegal lottery bets and more than six hundred fifty (650) horse racing bets. The police also found other bets which corresponded to the tally work seized from the cardboard box. The police placed all of the gambling records which were seized from the cardboard box and from inside the apartment on ...


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