232 Pa. Super. 94 | Pa. Super. Ct. | 1974
Opinion by
Appellants Dean Erb and Diane Ruth were indicted for simple possession, and possession with intent to deliver, a controlled substance — marijuana. After a hearing court denied appellants’ motions to suppress the seized contraband and other tangible incriminating evidence, a jury returned verdicts of guilty of simple possession, but not guilty of possession with intent to deliver. Post trial motions were argued and denied, and appellants were sentenced as follows: Mr. Erb was ordered to pay a fine of $500.00 and the costs of prosecution, and sentenced to serve not less than four months nor more than twelve, months in the Berks County Prison; Miss Ruth was ordered to pay the same fine and costs, and was sentenced to serve not less than thirty days nor more than twelve months in the same institution. Both appellants now argue that the lower court erred in refusing to suppress particular physical evidence because the State Police improperly executed the search warrant.
The appellants contend that the execution of the warrant was illegal because the troopers forcibly entered the apartment without giving the appellants a
In support of their argument appellants chiefly rely upon two decisions of our Supreme Court, Commonwealth v. DeMichel, 442 Pa. 553 (1971) ; and Commonwealth v. Newman, 429 Pa. 441 (1968), in which evidence was found to have been improperly admitted at trial because the police officers, in executing search warrants had not given the occupants of the premises a sufficient opportunity to submit voluntarily to that intrusion upon their privacy. We, of course, wholly agree with the principle for which those cases stand; however, we find that the troopers in the instant case acted reasonably in using force to enter the premises. This conclusion is strengthened when the facts of Commonwealth v. Newman and Commonwealth v. DeMichel are compared to those in the instant case.
In Commonwealth v. Newman, police arrived at the suspect’s apartment, banged loudly on the door and announced that they were the police. After twenty seconds passed without a response from within, the police broke down the door with a sledge hammer. In that case, however, the police never declared their purpose, and failed to demonstrate any basis for believing that exigent circumstances existed, aside from the fact that lottery paraphernalia which was the object of the search in that case may be easily destroyed.
In Commonwealth v. DeMichel, supra, the facts are more similar to those now before us. Nevertheless, they are readily, and we find fatally for appellants, distinguishable from those in the instant case. In DeMichel, the appellant was found guilty of maintaining an illegal lottery, based upon evidence found pursuant to a search of his premises. Therein the Supreme Court, in grant
Judgment of sentence is affirmed.
Appellants also claim that the affidavit accompanying the warrant failed to establish probable cause for the search because most of the information was stale, and was provided by confidential
The opinion of the Court, which was authored, by Justice Roberts was joined only by Justice O’Brien. Justice Eagen concurred in the result, thus producing a majority for reversal since neither Justices Cohen nor Bell participated in the decision of that case. Justice Pomeroy penned a dissent with which Justice Eagen joined.