Opinion
March 20, 1972.
September 15, 1972.
Criminal Law — Search and seizure — Ruse to have door opened without delay — Policeman dressed as a fireman — Evidence.
It was Held that the instant case did not present the question of whether the appellate court should approve the whimsical ruse of a policeman who dressed himself as a fireman in order to have the door of a home opened without being subjected to any delay in carrying out a search warrant, where it appeared that there was no evidence that the ruse caused the defendant to open the door.
Argued March 20, 1972.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and PACKEL, JJ.
Appeal, No. 845, Oct. T., 1971, from judgment of Court of Common Pleas of Lancaster County, No. 471-1970, in case of Commonwealth of Pennsylvania v. Matthew F. Usciak. Judgment affirmed
Reporter's Note: On December 11, 1972, a petition for allowance of appeal to the Supreme Court of Pennsylvania was denied. On April 2, 1973, a petition for a writ of certiorari to the Supreme Court of Pennsylvania was denied by the Supreme Court of the United States.
Indictment charging defendant with bookmaking. Before APPEL, J.
Verdict of guilty and judgment of sentence entered thereon. Defendant appealed.
Bernard L. Segal, with him William W. Stainton, Segal, Appel Natali, and Arnold, Bricker, Beyer Barnes, for appellant.
Ronald L. Buckwalter, Assistant District Attorney, with him George T. Brubaker, Assistant District Attorney, and Clarence C. Newcomer, District Attorney, for Commonwealth, appellee.
Contrary to appellant's position, this case does not present the interesting and difficult question of whether this Court should approve the whimsical ruse of a policeman who dressed himself as a fireman in order to have a door of a home opened without being subjected to any delay in carrying out a search warrant. The record does not show that the reason the defendant opened the door was because he thought a fireman was seeking admittance.
The issue has been stated to be an open one. Sabbath v. United States, 391 U.S. 585, 590 (1968); Com. v. Riccardi, 220 Pa. Super. 72, 76, 283 A.2d 719, 722 (1971).
The defendant testified that he did not open the door but that it was jerked open by the officer. The two officers involved testified that the door had been opened by the defendant. The court below was not bound to accept the defendant's version, and there was no evidence that the ruse caused the defendant to open the door.
Judgment affirmed.