Commonwealth v. Greco

• Decision Date: 12 January 1950
• Citation: 166 Pa.Super. 133,70 A.2d 413
• Parties: COMMONWEALTH v. GRECO.
• Court: Pennsylvania Superior Court

70 A.2d 413

166 Pa.Super. 133

COMMONWEALTH v. GRECO.

Superior Court of Pennsylvania

January 12, 1950

Argued November 21, 1949.

Appeal, No. 2, April T., 1950, from judgment of Court of Quarter Sessions of Washington County, Aug. T., 1947, No 221, in case of Commonwealth of Pennsylvania v. Leo Greco.

Indictment charging defendant with unlawful possession of liquor. Before Carson, J.

Verdict of guilty and judgment of sentence entered thereon. Defendant appealed.

Jerome Hahn, with him David H. Weiner and Bloom Bloom & Yard, for appellant.

William C. Porter, First Assistant District Attorney, with him Frank J. Docktor, District Attorney, for appellee.

Rhodes P. J., Hirt, Reno, Dithrich, Ross and Fine, JJ. (Arnold, J absent).

OPINION

DITHRICH J.

Appellant, holder of a Pennsylvania Malt or Brewed Beverage License, after a trial by jury, was convicted of violating § 602, article VI, of the Pennsylvania Liquor Control Act of November 29, 1933, Sp. Sess., P. L. 15, as amended, 47 PS § 744-602, which makes it unlawful for any person ". . . to have or keep any liquor within the Commonwealth, unless the package . . . in which the liquor is contained, . . . bears the official seal of the board."

Appellant admittedly brought into Pennsylvania liquor which he had purchased in a liquor store in Steubenville, Ohio. Pennsylvania Liquor Control Board officers, who had been stationed at the Ohio store, saw appellant make the purchase and place the packages in an automobile which bore a Pennsylvania license number. They tried to follow appellant back into Pennsylvania but lost trace of him somewhere in West Virginia. They then proceeded to the State Police barracks in Imperial, Pa., where they secured the information that appellant was the owner of an automobile bearing the license number of the car they had observed in Ohio, after which they proceeded to his place of business in Washington County.

Not finding the liquor in the restaurant, the officers questioned appellant and were told by him that it was still in the automobile in his garage adjacent to the restaurant. Upon request of the officers, appellant opened the garage doors, the liquor was found and seized, and appellant was placed under arrest. The garage was located forty feet to the left of the restaurant, and appellant's home was located thirty feet to the right thereof.

The chief burden of appellant's complaint is the admission in evidence of the liquor, which he contends was unlawfully seized. The learned court below held that it was not an unreasonable search and seizure, but whether it was or was not -- and we agree that it was not -- the evidence seized was clearly admissible.

Subsequent to the filing on February 28, 1949, of the opinion in this case refusing appellant's motions in arrest of judgment and for a new trial, the Supreme Court of the United States on June 27, 1949, speaking through Mr. Justice Frankfurter in Wolf v. Colorado, 338 U.S. 25, 93 L.Ed. 1782, 69 S.Ct. 1359, said, at pages 25, 26: "The precise question for consideration is this: Does a conviction by a State court for a State offense deny the 'due process of law' required by the Fourteenth Amendment, solely because evidence that was...