Com. v. Ferguson

• Decision Date: 11 December 1974
• Parties: COMMONWEALTH of Pennsylvania v. Columbus FERGUSON, Appellant.
• Court: Pennsylvania Superior Court

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331 A.2d 856 231 Pa.Super. 327 COMMONWEALTH of Pennsylvania
v.
Columbus FERGUSON, Appellant. Superior Court of Pennsylvania. Dec. 11, 1974.

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[231 Pa.Super. 329] Andrew G. Gay, Philadelphia, for appellant.

David Richman, Asst. Dist. Atty., Chief, Appeals Div., M. Sendrow, Philadelphia, for appellee.

[231 Pa.Super. 328] Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

[231 Pa.Super. 329] SPAETH, Judge:

Appellant, Columbus Ferguson, was arrested on January 14, 1972, in Philadelphia and charged with illegal possession of heroin. ¹ A pre-trial motion to suppress physical evidence seized immediately prior to appellant's arrest was filed and after an evidentiary hearing denied on February 14, 1972. Appellant was then tried in Municipal Court and found guilty as charged. A petition for a writ of certiorari in the Court of Common Pleas was denied on November 29, 1972. This appeal followed. Appellant contends that the physical evidence presented at trial was obtained during an unlawful search and seizure, and, in the alternative, that the evidence was insufficient to support the verdict.

On January 11, 1972, an informer notified a Philadelphia police officer that he had seen heroin in a garage at 2223 West York Street, Philadelphia. For the next two days the garage was placed under close surveillance. During the evenings, when the garage doors were closed and the lights were out in the business portion of the building, fourteen people were seen to enter and leave the garage. On both nights appellant left shortly after twelve and locked the garage doors. On January 14, 1972, a warrant to search the [231 Pa.Super. 330] garage was issued by Judge ZAGORSKI of the Philadelphia Municipal Court. When the police officers arrived at the garage to execute the warrant, appellant was leaving in his automobile accompanied by a woman. The police followed, stopped them, showed appellant the warrant, and returned with him to the garage. After appellant had unlocked two locks and chained a German shepherd watchdog to a pole inside, the police conducted a search. They found approximately one hundred business cards with the inscription 'Ferguson's Auto Repairs, Transmission Specialist, Tune-up, Motor Work and State Inspection, BA 8--4040, 2223 West York Street, Philadelphia, Pennsylvania'. In the supply room in boxes of brake linings they found two bundles of glazed paper packets containing white powder, later analyzed as heroin. An opening in the supply room led to a second

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level on which two more bundles were found amid windshields and car mufflers. Downstairs they noticed that the back of the water cooler was loosened and found one bundle inside the cooler. Finally, underneath the desk they found a brown paper bag containing two ounces of heroin. In all, one hundred and twenty-one packets and the brown paper bag of heroin were seized.

At the suppression there was testimony that the officer received his information from an informer, but other than that the Commonwealth relied on the face of the warrant. The prosecutor, however, never formally introduced tha warrant into evidence. Appellant accordingly claims that there was no evidence about the date of the informer's observation, nor any evidence to show that the officer swore to the facts in the affidavit, that the...