Appeals from sentence of Court of Common Pleas of Delaware County, May T., 1971, Nos. 190 and 191, in case of Commonwealth of Pennsylvania v. Frank Bove.
A. A. Guarino, for appellant.
Ralph B. D'Iorio, Assistant District Attorney, with him Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Cercone, J. Wright, P. J., and Watkins and Jacobs, JJ., dissent.
[ 221 Pa. Super. Page 346]
Appellant, Frank Bove, was found guilty in a non-jury trial of possession of narcotics and dangerous drugs and was sentenced by the Common Pleas Court, Criminal Division, of Delaware County. He now appeals to this court from the judgment of sentence.
Appellant contends that the lower court erred in permitting the Commonwealth to introduce evidence against him resulting from a search authorized by a search warrant issued by a district justice of the peace
[ 221 Pa. Super. Page 347]
of Delaware County. This warrant was issued on February 11, 1971 on information received by the police officer from an informant on January 8, 1971, over one month prior to the issuance of the warrant. Appellant was arrested on February 11, 1971 after the evidence in question was located on his premises. Appellant's conviction resulted solely from the admission of the evidence seized as a result of the search authorized by the warrant. The salient questions involved in his motions for a new trial and in arrest of judgment are probable cause for issuance of the warrant and the timeliness of the warrant.
The search warrant was issued solely upon the written affidavit of Officer F. Bunting, a narcotics officer. The affidavit reads as follows:
"Commonwealth of Pennsylvania :