Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1972, Nos. 657, 659, 660, 661, 662, 663, 669 and 670, in case of Commonwealth of Pennsylvania v. Anthony Jones, Walter Williams, Herbert Hawkins, and Dave Scott.
David Richman, with him Joseph C. Murray, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellant.
John W. Packel, with him Anne F. Johnson, Assistant Defenders, Vincent J. Ziccardi, Defender, Timothy A. Crawford, Ricardo Calvin Jackson, and Ronald J. Brockington, for appellees.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Concurring and Dissenting Opinion by Spaeth, J. Hoffman, J., joins in this opinion.
[ 229 Pa. Super. Page 227]
This appeal by the Commonwealth arises from the lower court's granting of the appellees' motion to suppress evidence discovered after an allegedly illegal search and seizure. The lower court cited the following comprehensive reasons for granting the motion to suppress: "(1) The warrant did not contain information upon which the magistrate could independently conclude there was probable cause for the search. In fact, no probable cause existed at the time the warrant was issued because of a lapse of at least twenty-one days between the time the alleged contraband was seen and the time the warrant was issued. (2) The warrant was not properly executed. (3) The items were not properly seized by the police and are not admissible in evidence against defendants." The grim details of the incidents which preceded the issuance and execution of the warrant are best described by the warrant itself.
"On Saturday, August 29, 1970, at 8:30 P.M., Park Policeman James Harrington was shot in the mouth on the highway, 63rd and Catherine Streets, by an unknown Negro male who escaped through the park. One hour later, the body of Sergeant Frank Von Colln, No.
[ 229 Pa. Super. Page 22812]
, Park Police, was found shot, five times in the Operations Room, Cobbs Creek Park Guardhouse. Approximately five minutes after the shooting of Policeman Harrington, Hugh Williams, resident 664 North 54th Street, was apprehended on the highway, Felton and Catherine, for possession of a .32 automatic with two additional clips and an army fragmentation hand grenade. Within 25 yards where he was apprehended a bag was found on the highway containing a .38 caliber revolver, a quantity of .38 caliber and .32 caliber ammunition and an army fragmentation hand grenade, as well as various articles of clothing.
"An identical type of hand grenade was also found at the scene of the shooting of Park Guard Harrington.
"Hugh Williams admitted that he was part of a conspiracy to blow up the Park Guard Station at 63rd and Catherine Streets and has named Robert and Alvin Joyner, Russell Shoates, Fred Belagon, Burton and another known to him as Ricky, as his co-conspirators.
"Jerry Joyner, 27, Negro male, residence 5440 Osage Avenue, brother of Robert and Alvin Joyner, was brought into Homicide Headquarters and told detectives that on Monday morning, about three weeks ago he went to 3625 Wallace Street to pick up some newspapers. He met his brother Alvin there, and Alvin took him to the second floor where he got a shotgun from the closet and showed him how to use it. Alvin also had a .38 automatic and had him try pulling the trigger and asked him to go out and shoot some pigs. He said he didn't want any of that. Alvin put the guns away and then took him down to the kitchen. He opened the cabinet underneath the sink and showed him three hand grenades in the floor, identical to those found at the scene.
"From the interview with Jerry Joyner it was learned he resides in and is ...