Com. v. Kaschik

• Decision Date: 22 September 1975
• Parties: COMMONWEALTH of Pennsylvania v. Michael R. KASCHIK, Appellant.
• Court: Pennsylvania Superior Court

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344 A.2d 519 235 Pa.Super. 388 COMMONWEALTH of Pennsylvania
v.
Michael R. KASCHIK, Appellant. Superior Court of Pennsylvania. Sept. 22, 1975.

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[235 Pa.Super. 389] August J. Costanzo, Pittsburgh, for appellant.

Robert F. Hawk, 1st Asst. Dist. Atty., Butler, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.

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JACOBS, Judge:

This appeal challenges the validity of a search warrant used by the police and the scope of their subsequent [235 Pa.Super. 390] search pursuant to the warrant. Not only do we find that the warrant was valid, but we also agree with the Commonwealth that the police did not exceed the boundaries of their search. Accordingly, we affirm the judgment of sentence.

Testimony given at the suppression hearing related the following facts: In March, 1972, the residence of a Glen Jefferies was searched by Trooper Bard and Trooper Schneider of the pennsylvania State Police. A tool box which was recognized as being stolen from an establishment known as McDonald Motors was discovered. As a result of this, Mr. Jefferies informed the troopers that he had obtained the took box from a Raymond Bester. Trooper Bard contacted Mr. Bester who stated that he had purchased the tool box from a Lee Schweinsberg along with some other tools which were produced and recognized by the trooper as stolen property. Trooper Bard was informed by Mr. Bester that Lee Schweinsberg had told him that he had additional tools at the Wimer Auto Body Shop where Schweinsberg was supposed to be working. Mr. Bester was later placed under arrest. On March 28, 1972, Trooper Bard applied for a search warrant for the Wimer Auto Body Shop. A description of several different types of tools was given as the property to be seized. The written affidavit on the warrant alleging probable cause for the search was as follows: 'According to information received from Raymond Eugene Bester, who claimed he purchased tools from Lee Edward Schwein(s)berg, also claimed that the said Lee Edward Schwein(s)berg had delivered the above described tools and property to The Wimer Auto-body and Car Sales sometime during the week of March 19, 1972.' Based on the above affidavit and other oral testimony given to the magistrate, the search warrant was issued that same day.

Trooper Bard and another state trooper proceeded to the body shop. When they arrived no one was there so they entered through an unlocked door. Inside the shop several [235 Pa.Super. 391] tools were discovered that had been allegedly stolen from McDonald Motors. Trooper Bard also noticed three automobiles inside the shop, one of which had many of its parts removed, and decided to write down their serial numbers. After returning to the barracks with the confiscated tools, Trooper Bard ran a N.C.I.C. (National Crime Information Center) check on the serial numbers of the vehicles and learned that one of them, a green Ford Mustang, had been reported by Pittsburgh Police as stolen. The next day, March 29, 1972, another search warrant was obtained and the stolen vehicle was recovered.

The testimony at trial revealed that when Trooper Bard returned to the Wimer Auto Body Shop on March 29, 1972, to seize the stolen vehicle, he observed a wrecked 1970 Ford Maverick parked in front of the lot. Upon closer examination of the vehicle, Trooper Bard noticed that there was no manufacturer's serial number on either the dashboard or the door post. Appellant allegedly admitted ownership of the vehicle at that time.

Appellant, the owner of the Wimer Auto Body Shop, was charged with burglary, ¹ larceny, ² and receiving stolen property ³ with respect to the stolen tools, receiving stolen property ⁴ with respect to the stolen vehicle, and possession of a vehicle with a defaced number ⁵ with respect to the 1970

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Ford Maverick. After a trial by a jury, appellant was found guilty of two counts of receiving stolen property with respect to the stolen tools and the stolen vehicle and possession of a vehicle with a defaced number. Following the denial of post-trial motions and the imposition of sentence, this appeal was taken.

[235 Pa.Super. 392] Appellant first claims that the suppression hearing court erred in permitting the Commonwealth to introduce testimony of oral information given by Trooper Bard to the magistrate to supplement the written affidavit for the search warrant. It must be remembered that the search warrant in this case was issued on March 28, 1972. At that time the sworn oral testimony by the affiant for the search warrant was allowed to supplement the written affidavit. Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973); Commonwealth v. Crawley, 209 Pa.Super. 70, 223 A.2d 885 (1966), Aff'd, 432 Pa. 627, 247 A.2d 226 (1968). Although Pa.R.Crim.P. 2003(a) now prohibits an issuing authority from considering evidence outside the written affidavit, that rule was not effective at the time the warrant in the present case was issued.

Appellant's next argument is that probable cause was not established to support the March 28 search warrant. This argument specifically questions the reliability of the information received by the affiant, Trooper Bard, and used by him to obtain the search warrant.

The United States Supreme Court has set forth the following test to determine whether information received by an affiant from an informant is sufficiently reliable to base probable cause upon: First, 'the magistrate must be informed of . . . some of the underlying circumstances from which the officer concluded that the . . . informant . . . was 'credible' or his information 'reliable ". Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964). Second, the magistrate must be informed by the affiant as to the underlying circumstances which caused the informant to believe that crime was being committed or contraband was being concealed in a certain location. Id. The Aguilar test has consistently been followed by the courts in this Commonwealth. Commonwealth v. Strohl, 458 Pa. 64, 326 A.2d 314 (1974); Commonwealth v. MacKay, 229 Pa.Super. 56, 324 A.2d 574 (1974); Commonwealth v. [235 Pa.Super. 393] McKeever, 229 Pa.Super. 35, 323 A.2d 44 (1974); Commonwealth v. Tasco, 227 Pa.Super. 144, 323 A.2d 831 (1974); Commonwealth v. Falk, 221 Pa.Super. 43, 290 A.2d 125 (1972). In Falk, this Court listed four factors which should be considered in determining whether a 'substantial basis' exists for crediting hearsay information received from an informant: '(1) accurate information previously given by the informant, (2) corroboration of the informant's story by other sources, (3) personal and recent observations of the informant which amount to a declaration against interest, and (4) the reputation of the defendant with...