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COMMONWEALTH v. CONNER (05/23/73)

decided: May 23, 1973.

COMMONWEALTH
v.
CONNER, APPELLANT



Appeal from order of Superior Court, March T., 1970, No. 14, affirming judgment of sentence of Court of Common Pleas of Dauphin County, March T., 1967, No. 107, in case of Commonwealth of Pennsylvania v. John R. Conner.

COUNSEL

John J. Krafsig, Jr., for appellant.

Jerome T. Foerster and Marion E. MacIntyre, Assistant District Attorneys, with them LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Manderino joins in this opinion and filed a concurring opinion. Mr. Justice Eagen concurs in the result. Concurring Opinion by Mr. Justice Pomeroy. Concurring Opinion by Mr. Justice Manderino.

Author: Roberts

[ 452 Pa. Page 334]

On January 24, 1968, appellant Conner was adjudged guilty, by a jury, of the unlawful possession of a firearm. Uniform Firearms Act, Act of June 24, 1939, P. L. 872, § 628, as amended, 18 P.S. § 4628. Post-trial motions for a new trial and in arrest of judgment were denied. An appeal to the Superior Court resulted in a per curiam order of affirmance, with two judges dissenting. Commonwealth v. Conner, 217 Pa. Superior Ct. 85, 266 A.2d 784 (1970).*fn1 This Court granted allocatur. We now reverse and remand for a new trial.

Appellant, on this appeal, challenges as error the suppression court's refusal to grant, after an evidentiary hearing, appellant's timely filed pretrial motion

[ 452 Pa. Page 335]

    to suppress the gun.*fn2 Specifically, Conner avers that the suppression court erred in two respects: (1) by allowing sworn oral testimony, given before the alderman (magistrate), to supplement the written affidavit; and (2) by sustaining the existence of probable cause for the issuance of the warrant, where neither the credibility of the informants nor the reliability of their information was established before the alderman.

Appellant cannot prevail on his first contention. As this Court recently stated in Commonwealth v. Milliken, 450 Pa. 310, 314, 315, 300 A.2d 78, 81 (1973): " Despite the obvious desirability of having all the information before the magistrate in writing, we are not persuaded that the affiant's sworn oral testimony may not supplement his written affidavit and together supply the constitutional basis for the issuance of a search warrant. Appellant has been unable to cite any authority in support of his position and indeed the existing case law is to the contrary. See, e.g., Boyer v. Arizona, 455 F. 2d 804 (9th Cir. 1972); Miller v. Sigler, 353 F. 2d 424 (8th Cir. 1965); Sparks v. United States, 90 F. 2d 61 (6th Cir. 1937); Commonwealth v. Crawley, 209 Pa. Superior Ct. 70, 223 A.2d 885 (1966), Aff'd. 432 Pa. 627, 247 A.2d 226 (1968). In the absence of any constitutional or decisional authority or procedural rule making impermissible the procedure here employed, appellant's claim for relief on this asserted ground must be rejected. In doing so we nevertheless express our preference for reducing to writing in some acceptable manner sworn oral testimony offered in support of the issuance of the search warrant.

[ 452 Pa. Page 336]

"We shall therefore, in exercise of our supervisory powers, formulate by rule of Court appropriate procedural Page 336} requirements of a sufficient written record made contemporaneously with the issuance of search warrants. Because this issue is not one of constitutional proportions, the rule will be wholly prospective and thus not applicable to the case at bar." (Emphasis added) (Footnotes omitted). See also Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973). The Third Circuit on April 16, 1973, in United States ex rel. Gaugler v. Brierly, 477 F. 2d 516 (3d Cir. 1973), decided precisely as did this Court in Milliken (citing Milliken with approval), that "[t]he Fourth Amendment does not require that a sworn statement in support of an application for a search warrant . . . be reduced to writing." Gaugler, supra at 522, Pennsylvania R. Crim. P. 2003, mandated by Milliken, supra, was adopted on March 28, 1973, and is effective for all warrants issued sixty days after the Rule's adoptive date. Accordingly, appellant's first claim must be decided adversely to him.

As to appellant's second argument that the "two prong" reliability test of Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509 ...


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