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COMMONWEALTH v. MCCANTS (09/30/71)

decided: September 30, 1971.

COMMONWEALTH
v.
MCCANTS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1970, No. 1608, in case of Commonwealth of Pennsylvania v. John McCants.

COUNSEL

Francis S. Wright, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Milton M. Stein, Assistant District Attorney, with him Mark Sendrow, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

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

Author: Per Curiam

[ 220 Pa. Super. Page 62]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Spaulding, J.:

I respectfully dissent.

Appellant John McCants appeals from a conviction for possession of narcotic drugs by the Honorable Peter F. Hagan of the Court of Common Pleas of Philadelphia County, sitting without a jury.

Prior to trial, appellant moved to suppress the evidence alleging it was seized pursuant to an invalid search warrant. At the pretrial suppression hearing, Officer Kutz of the Philadelphia Police Department testified that he had been told by a "reliable informant" that the latter had witnessed appellant engaged in illegal drug transactions on May 8 and May 15 of 1970. Based on this information, Officer Lutz placed appellant's home under surveillance on May 19 and 20. He testified that on those dates he witnessed a number of "known drug users" enter and leave appellant's apartment. A search warrant was issued on May 22 and on June 5 the warrant was executed. The search produced 0.8 grams of marijuana and 2.4 grams of heroin. Appellant's motion to suppress was denied and he was subsequently found guilty and sentenced.

Appellant contends that the unexplained fifteen day delay in executing the warrant rendered it invalid and all evidence seized pursuant to that warrant should have been ...


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