Commonwealth v. Ritz

457 A.2d 966, 311 Pa. Super. 437, 1983 Pa. Super. LEXIS 2727
CourtSuperior Court of Pennsylvania
DecidedMarch 18, 1983
DocketNo. 1062
StatusPublished
Cited by1 cases

This text of 457 A.2d 966 (Commonwealth v. Ritz) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Ritz, 457 A.2d 966, 311 Pa. Super. 437, 1983 Pa. Super. LEXIS 2727 (Pa. Ct. App. 1983).

Opinions

WATKINS, Judge:

This is an appeal from the order of the Court of Common Pleas, Criminal Division, of Westmoreland County, by the defendant-appellant, Bradford Douglas Ritz, after the lower court denied his post-trial motions in arrest of judgment and for a new trial.

On September 26, 1978, the defendant was charged with two counts of possession with intent to deliver a controlled substance subsequent to 35 P.S. 780-113(30) as the result of a search of the defendant’s home pursuant to a search warrant. On October 27, 1978, the defendant’s counsel filed an Omnibus Pre-Trial Motion consisting of three mo[439]*439tions: A Motion to Suppress the Evidence; a Motion to Suppress Statements and a Motion for Return of Seized Property. On November 2, 1978, the Commonwealth filed its answer to these motions and after a lengthy evidentiary hearing and oral arguments on these motions, the lower court denied the motions in a written opinion. The defendant was tried on December 3, 1979 and found guilty. Post-trial motions were denied and the defendant sentenced to eleven and one-half to twenty-three (IIV2 to 23) months imprisonment and two (2) years probation. This appeal followed.

On appeal, the appellant raises questions involving the sufficiency of the evidence and various errors by the court below in denying his Omnibus Pre-Trial Motions.

The pertinent facts of the case were adequately summarized by the court below as follows:

On September 7, 1978 at 9:45 P.M., Officers Joseph J. Marseli, of the Pennsylvania Bureau of Drug Control, and Ronald A. Yeverka, of North Huntingdon Township Police Department, obtained two search warrants from District Justice Tubbs; one warrant was for 1219 HahntownWendell Road, the residence of Bradford D. Ritz, and the other for 1289 Hahntown-Wendell Road, the residence of John Ritz, in North Huntingdon Township. Each search warrant contains an affidavit of probable cause identical to the other. The affiants’ averment of facts in support of probable cause for the issuance of warrants is, in summary, that:
In August, 1977, information was received from an confidential informant that Douglas Ritz (of 1219 Hahntown-Wendell Road) was trafficking in marihuana and cocaine; that the informant had purchased marihuana and cocaine from Ritz, and had seen as much as sixty pounds of marihuana inside the Ritz home; that the marihuana was delivered to Douglas Ritz in a trailer (titled to Ritz’s father, John A. Ritz); and, that the informant was reliable because the affiant had verified as correct and reliable details such as names, [440]*440descriptions of person, vehicles and houses and telephone numbers.
That since August of 1977 surveillance of 1219/i289 Hahn-town-Wendell Road has revealed visits by numerous known or convicted drug offenders. (Names of two convicted drug offenders are set forth in affidavit). That on June 28, 1978, two North Huntingdon Township Police Officers (while responding to an unrelated theft call) observed a male,. known to be involved in drugs, conceal á bag from police view while departing the Douglas Ritz residence.
That on June 29, 1978, surveillance revealed a known drug offender enter the Ritz residence through a garage door opened for them by Ritz, depart with a large paper shopping bag, which the officers believed to be marihuana, and place the bag in his car trunk.
On August 2, 1978, the automobile of another known drug dealer was observed by officers at the Ritz residence (1219 Hahntown-Wendell Road).
On September 1, 1978, the affiant interviewed a confidential informant (not the same on alluded to above) and received verifying information asto drug sales inside 1219/i289 Hahntown-Wendell Road. The informant stated that the marihuana was stored at 1289 because 1219 is small and has no basement; that he has seen marihuana at both placed and that he himself was a user and would recognize marijuana.
On September 7, 1978, at 7:00 P.M., the police observed James Parker arrive at and enter 1219, proceed with Douglas Ritz to 1289, return with Ritz and a large brown bag to 1219, then leave with the brown bag by car. The police arrested Parker for possession an recovered two pounds of marihuana from the bag.
The police served the search warrants for 1219 at 10:25 P.M. September 7, 1978, and for 1289 at 10:30 P.M. At 1289, the residence of John A. Ritz, the police confiscated plastic baggies containing four pounds of marihuana, numerous other plastic bags, marihuana seeds and pipe. [441]*441At 1219, the residence of Bradford Ritz, the police confiscated cocaine, a brown bag containing marihuana, a scale, $930.00 in cash on the person of Bradford Ritz, $9,900.00 in cash in a brown bag, vehicle rental slips and bank receipts of Mary Ann Nichols, a marihuana separator, $23,500.00 in cash in a brown bag and some miscellaneous items containing marihuana residue.

The defendant claims that the court below erred when it refused to grant his suppression motion. He claims that the police officers erred in the manner that they executed the search warrant claiming that they did not knock on his door before entering the premises. With respect to this argument the court below stated:

The second contention advanced by the defendant for suppression of evidence is that the Commonwealth is bound by an admission of pleading. Paragraph four of defendant’s Omnibus Pre-Trial Motion is as follows:
“4. The warrant issued for the premises described at 1219 Hahntown-Wendell Road was improperly executed in that the executing officers opened and entered the front door of said residence and only then announced their identity and purpose without affording the occupants the opportunity to voluntarily surrender the premises.”
The District Attorney answers only:
“4. Denied that search warrant was improperly executed in any manner.”
The defendant argues that the answer fails to deny the well-pleaded fact that the officer “opened and entered the front door ... and only then announced their identity and purpose”. Such an entry would, of course, violate the requirement that the police must afford an occupant a reasonable time to voluntarily surrender the premises. Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1975).
During the suppression hearing counsel sought to forclose (sic) any testimony by the officer on the question of execution of the warrant or entry into the premises. [442]*442Counsel objected to the officer’s testimony that the front door was open at the time of the officers’ arrival at the premises and that only the screen door was closed, and that the officers announced themselves and were admitted by Bradford Ritz. The Court ruled during the hearing that allegations of a strictly factual nature (though not conclusions of law) would be deemed admitted. The Court has reconsidered this question and now, in this opinion, narrows its ruling on this question in order to give due consideration to the issue.

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Related

Commonwealth v. Ritz
465 A.2d 1231 (Supreme Court of Pennsylvania, 1983)

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Bluebook (online)
457 A.2d 966, 311 Pa. Super. 437, 1983 Pa. Super. LEXIS 2727, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ritz-pasuperct-1983.