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COMMONWEALTH v. FLEMING (06/16/72)

decided: June 16, 1972.

COMMONWEALTH
v.
FLEMING, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Susquehanna County, Jan. T., 1969, No. 32, in case of Commonwealth of Pennsylvania v. Paul Fleming.

COUNSEL

George E. Goldstein and Robert M. Rosenblum, for appellant.

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

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J. Watkins, J., dissents.

Author: Hoffman

[ 221 Pa. Super. Page 482]

In the lower court appellant timely petitioned to suppress certain evidence on the basis that such evidence was obtained pursuant to the issuance of a defective search and seizure warrant. The lower court denied this motion on the basis that the warrant was proper on its face.

In Commonwealth v. Shaw, 444 Pa. 110, 281 A.2d 897 (1971), our Supreme Court had occasion to review the very same search warrant which is the subject of the instant case. In Shaw the Supreme Court held that the search warrant was defective. We are bound by that ruling.

Accordingly, the judgment of sentence is vacated and a new trial is ordered.

Disposition

Judgment of sentence vacated and new trial ordered.

19720616

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