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COMMONWEALTH v. SHAW (09/18/70)

decided: September 18, 1970.

COMMONWEALTH
v.
SHAW, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Susquehanna County, Jan. T., 1969, No. 28, in case of Commonwealth v. David Brian Shaw.

COUNSEL

Marvin Comisky, with him Richard M. Rosenbleeth, Goncer M. Krestal, and Blank, Rome, Klaus & Comisky, for appellant.

Edward P. Little, Jr., District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Hoffman, J. Jacobs and Spaulding, JJ., join in this dissenting opinion.

Author: Per Curiam

[ 217 Pa. Super. Page 164]

Judgment of sentence affirmed, and the defendant is directed to appear in the court below at such time as he may be there called, and that he be by that court committed until he has complied with the sentence, or any part thereof which had not been performed at the time the appeal was made a supersedeas.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Hoffman, J.:

The question raised in this case is whether there was probable cause for the issuance of a search warrant pursuant to which certain items were seized and later admitted in evidence against appellant.*fn1

[ 217 Pa. Super. Page 165]

The prosecution arose out of an investigation by an officer of the Pennsylvania State Police, beginning about April 1968. In December 1968, this police officer obtained a search warrant for a certain premises (hereinafter "Kaufman premises") in a rural area of Susquehanna County for the purpose of searching for narcotic drugs.

The probable cause section of the warrant stated that early in April an undercover agent had on two occasions gained access to the first floor of the tenant house, a section of the Kaufman premises, which was under the apparent possession and control of appellant and another individual. The agent had witnessed the smoking of marijuana and hashish by a group ...


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