Com. v. Menginie
| Decision Date | 31 March 1983 |
| Citation | 312 Pa.Super. 293,458 A.2d 966 |
| Parties | COMMONWEALTH of Pennsylvania v. Anthony MENGINIE, Appellant. |
| Court | Pennsylvania Superior Court |
Frank T. Hazel, Dist. Atty., Media, for Commonwealth, appellee.
Before WICKERSHAM, BROSKY and WIEAND, JJ.
This appeal arises from Anthony Menginie's challenge to his conviction on several counts of receiving stolen property and various other offenses. Specifically, Menginie was charged with receiving stolen property, possessing instruments of crime, tampering with records, dealing in vehicles with removed or falsified identification numbers, and removing or falsifying vehicle identification numbers, as well as drug related offenses. Before trial, Menginie's counsel filed an omnibus motion pursuant to Rule 306 of the Pennsylvania Rules of Criminal Procedure. 1 The omnibus motion sought the suppression of physical evidence and any statements made by Anthony Menginie. After a hearing, the Honorable R. Barclay Surrick granted the motion to suppress a statement Menginie made but denied the motion to suppress physical evidence. The case was tried before the Honorable Henry V. Scheirer and a jury; Menginie was convicted of the theft related offenses with which he had been charged, but was acquitted of the drug charges. 2
Post-trial motions for a new trial and in arrest of judgment were filed, alleging several errors in the suppression hearing and at trial. The court denied the post-trial motions and sentenced Menginie to an aggregate term of imprisonment of from two to five years as well as payment of a fine and restitution. This appeal timely followed.
On March 30, 1979 officers from the Upper Darby Police Department responded to a reported shooting at 214 North Linden Avenue, Upper Darby. Anthony Menginie was found bleeding on the lawn of a house several doors away from 214 North Linden Avenue. Menginie told the police that he had been shot by his brother Russell Menginie and that Russell was in the house at 214 North Linden.
When the police entered the house they saw Russell Menginie slumped against the wall in an upstairs hallway, with a handgun at his side. Unaware at the time that Russell Menginie had died from a self-inflicted gunshot wound, a police officer kicked the gun away from Russell Menginie. The gun landed in a bedroom and the officers entered the bedroom to secure the gun.
Once inside the bedroom the officers saw a scale and containers holding a white substance. The officers on the scene called for assistance from one Officer Ceccola, a narcotics officer of the Upper Darby Police Department. Officer Ceccola suspected that the white powder was either methamphetamine or cocaine and obtained a search warrant. This warrant authorized a search of the premises for drugs, drug paraphenalia and other evidence indicating that 214 North Linden Avenue was used to distribute drugs.
As they executed the first warrant the police discovered numerous motorcycles and motorcycle parts. They also found an improperly removed serial number plate from a Harley-Davidson motorcycle, an open certificate of title for a Harley-Davidson motorcycle and a notary public seal issued to an unknown person who did not live at 214 North Linden. The Upper Darby police concluded that the premises were also the site of a motorcycle "chop shop" and called in the Pennsylvania State Police. State police troopers agreed that they had found a chop shop and obtained another warrant. The second warrant authorized a search of the premises for stolen motorcycles and motorcycle While executing the first search warrant, the local police also found a home safe. The police obtained a search warrant for the safe and discovered nearly $18,000 in cash in the safe. Menginie was tried, convicted and sentenced; this appeal followed.
[312 Pa.Super. 299] parts, tools used to remove vehicle identification numbers and documents relating to traffic in stolen motorcycles.
Menginie's first issue is:
Was the initial search warrant vitiated due to material misstatements in the probable cause section?
Menginie believes that two errors in the first search warrant required suppression of all evidence seized under the warrant. The probable cause section of the warrant states that two bodies were found inside 214 North Linden Avenue and that the search was conducted at 10:20 P.M. In fact, only one body was found in the house and the warrant was issued at 10:47 P.M. Menginie argues: "The only logical explanation for the misplaced body ... would be to provide adequate probable cause for [the police] to enter the front bedroom in case his "on sides kick" of the gun into the bedroom was rejected as a basis for probable cause to enter the front room and discover its contents." Brief for Appellant at 1-2.
Menginie has waived this issue. In Commonwealth v. Stickle, 484 Pa. 89, 398 A.2d 957 (1979) the appellant claimed that a search warrant used to obtain hair, blood and fingernail scrapings from him was invalid because factual assertions made in the warrant were patently false. The supreme court held that Stickle "made no effort in his pretrial "Motion to Suppress" to apprise the suppression court of specific factual falsities contained in the warrant and, therefore, has not preserved this issue." Id. at 97, 398 A.2d at 961. Similarly, Menginie's omnibus pretrial motion did not apprise the suppression court of the specific factual falsities he now argues invalidate the first search warrant. Thus, under the authority of Stickle, supra, Menginie has not preserved this issue for review.
Yet even if Menginie's motion had properly preserved his claim he would not be entitled to relief because of errors in the warrant. Contrary to appellant's above quoted assertion there is another explanation for the error in the affidavit. One of the police officers who swore out the warrant testified at the suppression hearing and indicated that the affidavit's mention of two bodies was an error. The suppression court was, of course, free to accept the police officer's explanation that the statement about two bodies was simply a mistake.
Further, the mere presence of an error in the probable cause affidavit does not invalidate a search warrant. As this court said in Commonwealth v. Zimmerman, 282 Pa.Super. 286, 295-96, 422 A.2d 1119, 1124 (1980) (citations omitted):
In order to secure a valid search warrant, an affiant must provide a magistrate with information sufficient to persuade a reasonable person that there is probable cause for a search. The information must give the magistrate the opportunity to know and weigh the facts and to determine objectively whether there is a need to invade a person's privacy to enforce the law. In [Commonwealth v.] D'Angelo [437 Pa. 331, 263 A.2d 441 (1970) ], the court held invalid a search warrant based upon the affiant's misstatement of a fact. Later cases have held, however, that misstatements of fact will invalidate a search warrant and require suppression of the fruits of the search only if the misstatements of fact are deliberate and material. A material fact is one without which probable cause to search would not exist.
In this case the presence or absence of an additional body inside the house was not a material fact. After their initial lawful entry to 214 North Linden the police were entitled to retrieve Russell Menginie's weapon from the room where it landed; once the police saw substances which appeared to be drugs in that room they had probable cause to support issuance of a Menginie's second issue is:
search warrant for drugs irrespective of how many bodies were in the house.
Was there a reasonable justification for the issuance of a nighttime search warrant?
Menginie asserts that the first search warrant was issued at 10:47 P.M. and argues that the police officers did not satisfy the requirements for a nighttime search. The Pennsylvania Rules of Criminal Procedure prohibit a nighttime search unless the affidavits show reasonable cause for a nighttime search. Pa.R.Crim.P. 2003(c). The affidavits supporting this search warrant stated that other persons had access to the house at 214 North Linden; Menginie argues that this statement does not satisfy the "reasonable cause" requirement of Pa.R.Crim.P. 2003(c).
Menginie's failure to present a proper suppression motion has resulted in a waiver of this issue as well. The only portion of Menginie's suppression motion which even arguably raises the issue of an improper nighttime search is found at part II(c) of the motion. Part II(c) of the suppression motion stated: "An illegal search was conducted of premises 214 Linden Ave., Darby, Pennsylvania, at which time alleged contraband was observed and later confiscated." This conclusory statement does not satisfy the requirements of Pa.R.Crim.P. 323(d), which provides: "The motion shall state specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and events in support thereof."
The instant motion clearly does not state with specificity and particularity the grounds for suppression or describe the facts and events underlying the grounds for suppression. We agree with the view expressed by Justice Larsen in his plurality opinion in Commonwealth v. Dobson, 486 Pa. 299, 304, 405 A.2d 910, 913 (1979):
At a minimum, the 'specificity' and 'particularity' demands of Rule 323(d) required that, in order to have preserved the issue of the admissibility of the physical evidence, appellant would have had to have set forth in his motion, and have argued at the hearing, the fact that a seizure of the evidence had occurred pursuant to a search warrant and the grounds now asserted that the seizure was invalid because probable cause for the warrant had been solely on illegally obtained statements. See Commonwealth...
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