Commonwealth v. Funke
| Decision Date | 19 November 1982 |
| Citation | 452 A.2d 857,306 Pa.Super. 542 |
| Parties | COMMONWEALTH of Pennsylvania v. Stuart Walter FUNKE, Jr., Appellant. |
| Court | Pennsylvania Superior Court |
Argued March 6, 1980. [Copyrighted Material Omitted]
J. Christian Ness, York, for appellant.
Peter J. Mangan, Asst. Dist. Atty., York, for the Commonwealth appellee.
Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.
This is an appeal from the conviction and sentence of the Court of Common Pleas of York County by the defendant-appellant Stuart Walter Funke, Jr. He was convicted by a jury of the manufacture of amphetamines. Post-trial motions were denied by the trial court, and appellant was sentenced to a term of imprisonment of not less than two and one-half nor more than five (2 1/2-5) years.
The facts as set forth in the opinion of the court below are as follows: Shortly after Christmas, 1977, the defendant moved into real estate in the City of York which he and his wife owned and which was previously occupied by his wife and child. There was a retail establishment on the first floor of the premises. Defendant and his family occupied an apartment on the second and third floors. The defendant owned a great deal of laboratory equipment, had studied chemistry and had practical experience in the field as it was a significant part of his job at American Machine Foundry. On January 3, 1978, two boxes from a chemical supply house were delivered to a Mr. Senft. These had been ordered by a Mr. Boring, who requested that Mr. Senft receive them. When notified that the boxes had arrived, Boring picked them up and delivered them to the premises occupied by the defendant. Later that day, Pennsylvania State Police Officers who had the premises under surveillance examined two boxes apparently set out in front of the defendant's premises for refuse collection. There were several empty bottles in these boxes which contained residue of formaldehyde, formic acid, and phenyl-2-propane. The last was identified by an expert witness as a chemical essential to the illicit manufacture of amphetamines. The other chemicals were identified as ones that could be and frequently were used in such production. A search warrant was obtained and executed on January 6, 1978. The police found a great quantity of laboratory equipment in a room on the third floor. This equipment included a large number of items which contained residue of amphetamines. An expert witness called by the Commonwealth testified that the equipment that had been seized included all of the equipment required to manufacture amphetamines and he further testified that he had made amphetamines by a process that used said equipment, the chemicals found on the premises, and the chemicals in the containers found in the trash.
Appellant's first contention in this appeal is that the search warrant was invalid, in that there was insufficient information from which the issuing authority could assess the credibility of the informants, there was a failure to set forth the underlying circumstances necessary to judge the validity of the informants' information, and there was no probable cause to justify issuance of this search warrant at the time of its issuance.
There is a two-pronged test which must be met before a magistrate can issue a search warrant based primarily on information supplied by informants. First, the affidavit must set forth the underlying circumstances from which the informant drew his conclusion. Second, the affidavit must contain 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).
The appellant contends that the Aguilar test was not met with respect to the three informants involved here. It is true that the affidavit does not set forth adequate information from which one could ascertain that the informant's were credible or their information reliable. However, one does not have to rely solely on the information supplied by the informants in order to find that there was probable cause to believe that appellant was operating a clandestine laboratory. The affidavit consists of sixteen paragraphs, the majority of which relate the personal observations of the affiant and other police officers resulting from an extensive investigation and the surveillance of appellant's premises. One must take into consideration the affidavit as a whole, which consists of: (1) information supplied by informants; (2) information which supports the conclusion that appellant is a chemist; (3) observations of police officers that certain chemicals were delivered to appellant's premises by one George Boring; and (4) the fact that bottles containing chemicals essential to the manufacture of amphetamines were found in front of appellant's premises. Clearly, all of this taken together is sufficient for a finding of probable cause. Therefore, the search warrant was valid.
The second issue raised on appeal is whether the lower court erred in failing to remove from the courtroom a large quantity of materials which were never used as exhibits at trial. Appellant cites several cases in which the presence of certain materials within the jury's view was held to be prejudicial since they were unrelated to the crimes with which the defendants were charged. See State v. Bowman, 8 Wash.App. 61, 504 P.2d 1148 (1972); Adler v. State, 248 Ind. 193, 225 N.E.2d 171 (1967); U.S. v. Kwitek, 433 F.2d 18, later appealed, 467 F.2d 1222 (1972). This case is distinguishable. The materials seized from appellant's premises consisted of textbooks, magazines, and laboratory equipment. This all supported the fact that appellant is an experienced chemist who performed experiments in his home. Since he was charged with manufacture of amphetamines, these materials were clearly related to the crime charged. This is not comparable to the situation in Adler v. State, supra, in which the crime charged was robbery and a picture of the deceased victim was posted in front of the jury, giving rise to the implication that the defendants were responsible for his death. Counsel for appellant has been unable to show what materials were prejudicial to appellant. Since the materials were all related, however, incidentally to the crime charged, and since there has been no allegation of which materials were prejudicial, the lower court did not err. This is particularly true in light of the fact that the Commonwealth intended to have all the materials admitted into evidence at some time during the trial. The court had no way of knowing at the time of the objection that a large portion of the material would never be admitted.
A third issue raised by the appellant is whether the lower court erred in failing to instruct the jury to limit its deliberations to that period of time for which the defendant was charged. The information charged manufacture of amphetamine on or about January 6, 1978, the date of the search of appellant's property. Prior to the trial the Commonwealth indicated an intent to prove that the offense occurred between January 3, 1978 and January 6, 1978. In its charge to the jury, the court instructed that the jury could consider activities of appellant from Christmas, 1977 to January 6, 1978, in deciding whether or not the Commonwealth had proved appellant's guilt beyond a reasonable doubt. Counsel for appellant now contends that this instruction was error since it changed the time frame originally agreed upon. He says that if he had known that such would be the case, he would have made different tactical decisions.
The law is clear that such an instruction is proper. It is provided in Pa.R. Crim.Pro. 213(a)(3) that an indictment or information must contain: "the date when the offense is alleged to have been committed if the precise date is known, and the day of the week if it is an essential element of the offense charged, provided that if the precise date is not known or if the offense is a continuing one, an allegation that it was committed on or about any date within the period fixed by the statute of limitations shall be sufficient."
The "on or about" language was employed in the information charging appellant.
In Commonwealth v. Rouse, 207 Pa. Superior Ct. 418, 218 A.2d 100 (1966), it was written that "in the prosecution of ... crimes in which a particular date or day of the week is not the essence of the offense, the Commonwealth's burden is to prove the commission of the crime upon some date fixed with reasonable certainty and within the prescribed statutory period." The court upheld the conviction of the defendant since the trial judge found that "On several occasions during the period from approximately the first week in November to the second week in December, and on or about the New Year" the defendant had committed the acts for which he was charged. In Commonwealth v. Morrison, 180 Pa. Superior Ct. 121, 118 A.2d 258 (1955), it was held that "the jury [can] properly consider and convict upon any evidence that show[s] commission of the crime or crimes charged within [the statutory period]."
The offense in this case is a continuing one. The information properly charged appellant with manufacture of amphetamine "On or about January 6, 1978." Counsel for the appellant had asked the court during the trial to limit testimony to events which occurred on January 6, 1978. The Commonwealth indicated that the testimony elicited would probably concern events which occurred between January 3, 1978, and January 6, 1978. During the course of the trial, however, there was testimony concerning events prior to that time. Therefore, the lower court's instruction to consider...
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