Petition for leave to appeal from orders of Superior Court, April T., 1967, Nos. 111 and 116, affirming judgments of Court of Oyer and Terminer of Lawrence County, Sept. T., 1966, Nos. 7 and 8, in case of Commonwealth of Pennsylvania v. Arthur Goslee and Lewis Forsyth.
James A. Caldwell, for petitioner.
Kenneth E. Fox, Jr., District Attorney, for Commonwealth, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts.
Arthur Goslee, Lewis Forsyth and Keith Zeigler were tried in June, 1966 in Lawrence County. The cases were consolidated for trial, the jury finding both Goslee and Forsyth guilty of conspiracy, burglary, larceny and receiving stolen goods and Zeigler guilty of conspiracy and receiving stolen goods. Goslee and Forsyth appealed their convictions to the Superior Court; after an affirmance without opinion, both filed petitions for allocatur which are hereby granted.
Viewing the evidence in a light most favorable to the Commonwealth, the record discloses that some time between 2:30 p.m. October 16, 1965 and 2:30 p.m. October 18 a house was burglarized. One of the investigating officers remembered that on the night of the 17th he had seen appellant Goslee standing on the corner one-half block away from the scene of the offense conversing with another, unrecognized individual.*fn1 This information coupled with the fact that Goslee had a prior burglary conviction formed the basis of a clearly invalid search warrant.*fn2 Armed with this warrant, three officers traveled to Goslee's apartment, there arrested Goslee and Forsyth and then searched the apartment finding some of the stolen items.*fn3 Appellants'
counsel contested the legality of the arrest and resulting search at a suppression hearing and again at trial.
The Commonwealth properly recognized that, given the invalidity of the search warrant, admission at trial of the results of the search could have been justified only if incidental to a lawful arrest. Two contentions are advanced by appellants to demonstrate the invalidity of their arrests: (1) Criminal Procedure Rule 108 requires that arrest warrants be obtained for all arrests for offenses punishable by a sentence of more than two years; since no arrest warrant was obtained in this case, the arrest under this rule is invalid; and (2) The arresting officers lacked probable cause to arrest appellants.
Rule 108(b)(1) provides: "A warrant of arrest shall be issued when: (1) The offense charged is punishable by a sentence of imprisonment of more than two years." The use of the mandatory "shall" does give linguistic merit to appellants' argument. However, Rule 108, patterned after Federal Rule of Criminal Procedure 4, was designed to permit discretionary use of a summons instead of warrant in certain cases and has no impact or effect on the rules governing arrests without warrant existing prior to adoption of the rule. That the import of Rule 108 is not a modification of existing doctrines is made evident by an examination of the statute under which this rule was promulgated. The Act of July 11, 1957, P. L. 819, § 1, 17 P.S. § 2084 indicates that the rules of criminal procedure "shall neither abridge, enlarge nor modify the substantive rights of any party"; to hold that arrest warrants are required in all cases involving possible sentences of more than two years would be an enlargement.
We do find, however, that appellants' second contention is meritorious and therefore grant both appellants a new trial. An affidavit prepared by the arresting ...