Com. v. Fisher

• Decision Date: 16 November 1972
• Citation: 223 Pa.Super. 107,296 A.2d 848
• Parties: COMMONWEALTH of Pennsylvania v. Edward FISHER, Appellant.
• Court: Pennsylvania Superior Court

Page 848

296 A.2d 848

223 Pa.Super. 107

COMMONWEALTH of Pennsylvania v. Edward FISHER, Appellant.

Superior Court of Pennsylvania.

Nov. 16, 1972.

Petition for Allowance of Appeal Denied Feb. 21, 1973.

Nino V. Tinari (Submitted), Lorch, Ryan, Peruto & Vitullo, Philadelphia, for appellant.

Milton M. Stein, Chief, Appeals Div. (Submitted), Arlen Specter, Dist. Atty., Philadelphia, for appellee.

Before WRIGHT, P.J. and WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE and PACKEL, JJ.

CERCONE, Judge:

Defendant was found guilty in a non-jury trial on charges of possession of dangerous drugs and possession of narcotic drugs. His motion in arrest of judgment was denied by the lower court, hence this appeal. ¹

Defendant's two main arguments in support of his motion are: (1) that the affidavit in support of the search and seizure warrant in this case was defective because it failed to specify the time observations were made by the informer, the time he transmitted this information to the affiant officer, and the time the surveillances were made by the officers as a result of the information received; (2) that the evidence introduced against him was obtained as a result of an illegal execution of the warrant in violation of his Fourth Amendment rights in that the police broke down the door of his apartment. He claims that the evidence so obtained was therefore inadmissible at trial. ²

We are satisfied that the court below was correct in denying defendant's motion in arrest of judgment.

In passing upon a motion in arrest of judgment, the evidence must be read in the light most favorable to the Commonwealth, which by reason of the verdict is entitled to all reasonable inferences arising therefrom; Com. v. Stukes, 435 Pa. 535, 257 A.2d 828 (1969); Com. v. Hazlett, 429 Pa. 476, 240 A.2d 555 (1968); Com. v. Zimmerman, 214 Pa.Super. 61, 251 A.2d 819 (1969). The effect of such a motion is to admit all the facts and inferences reasonably drawn from the facts which the Commonwealth's evidence tends to prove: Com. v. Tabb, 417 Pa. 13, 207 A.2d 884 (1965). If these facts and inferences are sufficient to prove guilt beyond a reasonable doubt, the verdict is justified.

A study of the record with these principles of law in mind, discloses that two police officers, in plain clothes, arrived at defendant's apartment at 6959 Theodore Street in Philadelphia and knocked at his door. Defendant opened the door, but before the officers had an opportunity to announce their purpose and authority, and as one of the officers stood in plain view, with his police badge in one hand and the search warrant in the other, defendant closed the door in the officers' faces. The record further discloses that the officers waited a short time and then called to defendant that they were 'the police department' and to open the door or they would break it down. Upon defendant's failure to reopen the door, the officers broke in and searched the premises.

Defendant's contention that the affidavit in support of the warrant is defective is without merit. It is true that no time is set forth in the probable cause section of the affidavit as to when observations of the crime were made by the informer or when he transmitted this information to the police or when any surveilance was made by the police officers. However, an affidavit does not stand alone. An affiant may supplement the affidavit with oral testimony before the magistrate and both the affidavit and the additional oral information supplied by the officer under oath to the magistrate are relevant in determining probable cause for the issuance of a warrant: Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Com. v. Crawley, 209 Pa.Super. 70, 223 A.2d 885 (1966); Com. v. Payton, 212 Pa.Super. 254, 243 A.2d 202 (1968). In this case the officer stated to the magistrate that fifteen minutes after he had typed out the affidavit, which was prepared on the same morning he presented it to the magistrate, April 4, 1969, the informer called him on the telephone to tell him of additional evidence he had seen relating to the possession of dangerous drugs and narcotics on the part of the defendant (that a large bag containing narcotics was on the back porch of the premises to be searched and where defendant lived). This additional information was sufficient to apprise the magistrate of the current activity of defendant and supplied the magistrate with underlying circumstances from which he could make an independent and detached appraisal of probable cause for the Them issuing of a warrant: United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Under the circumstances of this case, the affidavit and oral testimony of affiant are sufficient to support the timeliness of, and probable cause for, the issuance of the warrant.

As to defendant's second contention, the law is clear that before breaking down a door in order toe xecute a warrant, a police officer must announce his identity, authority, and...