Commonwealth v. Zimmerman
| Decision Date | 14 November 1980 |
| Citation | 422 A.2d 1119,282 Pa.Super. 286 |
| Parties | COMMONWEALTH of Pennsylvania v. Lamar T. ZIMMERMAN, Appellant. |
| Court | Pennsylvania Superior Court |
Argued Dec. 5, 1979.
Burton A. Rose, Philadelphia, for appellant.
John T. Salvucci, Asst. Dist. Atty., Norristown, for Commonwealth appellee.
Before PRICE WATKINS and HOFFMAN, JJ.
Appellant contends that: (1) his warrantless arrest lacked probable cause; (2) the lower court should have suppressed certain evidence seized unlawfully and/or tainted by his unlawful arrest; (3) the search warrants were based upon material misrepresentations and/or were tainted by evidence received in prior illegal searches; (4) the lower court improperly restricted cross-examination of an affiant regarding the reliability of a confidential informant; and (5) his sentence is excessive and lacks a sufficient statement of reasons. [1] [1] We disagree and, accordingly, affirm the judgment of sentence.
In June, 1977 a confidential informant told Trooper White of the state police that appellant was operating a methaqualone manufacturing laboratory. Although the informant did not substantiate this information, he had previously given the troopers information which had led to numerous arrests and convictions. On August 1, 1977, the informant told Trooper White and Corporal Bason that he and several of his associates were negotiating with appellant for the purchase of the laboratory. The informant also told the troopers that Maurer and "Herb" assisted appellant in his drug operation, and that on July 30, 1977, he had been in the basement of 759 Queen Street where he had observed the pill press and some white powder used to make tablets. Additionally, he described the external characteristics of the building, including the entrances. On the evening of August 1, Trooper White, who initiated surveillance, saw that the building was dimly lit and heard a loud exhaust fan at the rear of the building. At about 12:20 a. m. on August 2, Trooper White saw an individual leave the rear entrance of 759 Queen Street and walk onto a parking lot at the rear of 762 High Street, appellant's residence. [2]
On August 2, at 8:05 a. m., Trooper White again contacted the informant. The informant now warned that appellant would probably dismantle the laboratory that very day. Appellant purportedly was having difficulty in the operation and was concerned that the police had discovered the laboratory. White and Bason, concluding that immediate action was necessary, began preparations to obtain a search warrant. They dispatched Troopers Mateleska and Kaunert to the area of 759 Queen Street at 10:45 a. m. on August 2. Those troopers were aware of the information revealed by the informant and were instructed to watch the building and secure the area until a search warrant could be obtained. While stationed across from the residence, the troopers saw two men leave the area of 762 High Street and enter the rear basement door of 759 Queen Street. Twenty minutes later, at 11:40 a. m., the two men exited the building. One carried an object which appeared to be a machine. He emptied some liquid from it and placed it into the trunk of an automobile parked in the lot behind 759 Queen Street. Meanwhile, the companion stood on the basement steps and kept a look-out.
The troopers, concerned that the men were in the process of dismantling the laboratory, approached the two and requested identification. The men identified themselves as Paul Maurer and Doctor Lamar T. Zimmerman. The troopers placed both men under arrest and Mateleska read them their constitutional rights. Soon thereafter, noises were heard from the basement. Concerned about their safety and further destruction of the laboratory, Trooper Mateleska asked appellant if anyone else was in the building. According to the troopers, appellant replied, "No one else is in there, go ahead and look." Appellant denies that he made that statement. Mateleska entered the basement of 759 Queen Street and looked around for other individuals. During that brief search, the troopers saw the pill press, white powder, and tablets.
Mateleska then placed a call to his superiors, informed them of the events which had transpired, and requested assistance from them. This additional information was incorporated into the affidavit which White and Bason were preparing. Search warrants issued for 757 and 759 Queen Street and 762 High Street were executed on the afternoon of August 2.
Appellant was charged with various violations of the Controlled Substance, Drug, Device and Cosmetic Act, conspiracy, and risking a catastrophe. Following the denial of appellant's suppression motion, the case came to jury trial. Appellant was found guilty of the drug related counts and was sentenced to three-and-one-half-to-seven years, fined $35,000.00 and charged the costs of prosecution. Upon the denial of post-verdict motions, appellant took this appeal.
Appellant contends that his warrantless arrest was not based upon probable cause. [3] We disagree. "It is well established that a police officer is authorized to arrest without a warrant when he has probable cause to believe that a felony has been committed and that the person to be arrested is the felon." Commonwealth v. Jones, 233 Pa.Super. 461, 464, 335 A.2d 789, 791 (1975) (citations omitted). This Court, in Commonwealth v. Donnelly, 233 Pa.Super. 396, 404, 336 A.2d 632, 636 (1975), summarized the law of probable cause as follows:
Probable cause to justify a warrantless arrest exists if the facts and circumstances known to the officer at the time of the arrest would warrant a prudent man in believing that an offense had been committed, and the suspect was the perpetrator of the offense. Terry v. Ohio, 392 U.S. 1, (88 S.Ct. 1868, 20 L.Ed.2d 889) (1968); McCray v. Illinois, 386 U.S. 300, (87 S.Ct. 1056, 18 L.Ed.2d 62) (1967); Commonwealth v. Smith, supra, (201 Pa.Super. 511, 193 A.2d 778); Commonwealth v. DeFleminique, 450 Pa. 163, 299 A.2d 246 (1973); Commonwealth v. Brown, 230 Pa.Super. 214, 326 A.2d 906 (1974). These facts and circumstances, however, are not those that a legal technician might desire when examining the situation in retrospect; but, rather, the practical considerations of everyday life upon which reasonable and prudent men rely. Henry v. United States, 361 U.S. 98, (80 S.Ct. 168, 4 L.Ed.2d 134) (1959); Draper v. United States, supra, (358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327); Commonwealth v. Negri, 414 Pa. 21, 198 A.2d 595 (1964). In any event, probable cause means less evidence than that which justifies convictions. Wong Sun v. United States, 371 U.S. 471, (83 S.Ct. 407, 9 L.Ed.2d 441) (1963); Commonwealth v. Anderson, 224 Pa.Super. 19, 302 A.2d 504 (1973). See generally Annot., 28 L.Ed.2d 978 (1971) (); 4 Wharton's Criminal Evidence § 721 (13th ed. C. Torcia 1973).
Appellant concedes that the troopers had " 'information' that a 'laboratory' was being dismantled by a man not known to them by sight." Nevertheless, appellant argues that the Commonwealth could not rely upon this tip to establish probable cause because neither the underlying circumstances upon which it was based nor the reliability of the informant were shown. See Betrand Appeal, 451 Pa. 381, 303 A.2d 486 (1973). In Commonwealth v. Norwood, 456 Pa. 330, 319 A.2d 908 (1974), however, our Supreme Court stated:
We need not decide whether this tip, standing alone, would meet the requirements of Spinelli v. United States, 393 U.S. 410, (89 S.Ct. 584, 21 L.Ed.2d 637) (1969) and Aguilar v. Texas, 378 U.S. 108, (84 S.Ct. 1509, 12 L.Ed.2d 723) (1964), because the arresting officer in this case gained additional crucial information from his personal observations prior to the arrest of appellant.
Id. at 333, 319 A.2d at 909 (footnote omitted). Accord, Commonwealth v. Legg, 258 Pa.Super. 294, 298, 392 A.2d 801, 803 (1978), citing Whitely v. Warden, 401 U.S. 560, 567, 91 S.Ct. 1031, 1036, 28 L.Ed.2d 306 (1971). "(T)he additional information acquired by the arresting officers must in some sense be corroborative of the informer's tip that the arrestees committed the felony or, as in Draper itself, were in the process of committing the felony." Whitely v. Warden, id. at 567, 91 S.Ct. at 1036. Measured by that standard, the troopers' observations on the morning of August 2 sufficiently corroborated the informer's statements. The troopers saw two men leave appellant's residence, enter the premises suspected to be the laboratory, and then saw one carry out a piece of machinery and place it into the trunk of a waiting automobile while the other man kept a look-out. These men identified themselves as Maurer and appellant. "This information strongly reinforces the tip ..." that the men were in the process of dismantling the laboratory. Commonwealth v. Norwood, supra 456 Pa. at 333, 319 A.2d at 909. Thus we conclude that, at the time of arrest, the troopers had knowledge of sufficient facts and circumstances to warrant a prudent man in believing that appellant had committed or was committing a crime. [4]
Appellant contends that Trooper Mateleska conducted an unlawful warrantless search of 759 Queen Street. We disagree. Although the search was made after the arrest and before the arrival of the warrant, we conclude that the search, if it be deemed such, was valid because appellant consented to the search. [5] See Commonwealth v. Donnelly, supra 233 Pa.Super. at 406-07, 336 A.2d at 637-38; Commonwealth v Smith, 201 Pa.Super. 511, 193 A.2d 778 (1963). Appellant stated, in response to a question that no one was in the basement and voluntarily told the troopers to take a look. This is...
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