Appeal from the Judgment of Sentence in the Court of Common Pleas of Lancaster County, Pa., Criminal Div., at No. 68 of 1974. NO. 886 OCTOBER TERM 1975.
Penn B. Glazier, Lancaster, for appellant.
Henry S. Kenderdine, Jr., Assistant District Attorney, Lancaster, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., concurs in the result. Price and Van der Voort, JJ., note their dissents.
[ 245 Pa. Super. Page 201]
This is an appeal from judgment of sentence. A jury found appellant guilty of stealing some copper wire. Appellant claims various errors, but the only claim we need consider is that his confession was the result of an unlawful arrest.*fn1
The arrest was on a warrant issued by a justice of the peace in response to a complaint signed and sworn to before the justice by a State trooper.
Paragraph 2 of the complaint stated:
The acts committed by the accused were:*fn* Theft by Unlawful Taking or Disposition.
On the above date and time [December 26, 1973, 3-5 a. m.] the actor did intentionally and knowingly enter onto the property of W. S. Fry & Co., commonly known as Billmeyer Quarry, and from the wooden poles thereon did remove approximately 720 feet of copper wire, valued at $480.00
Theft by unlawful Taking or Disposition. On the date of December 8, 1973, at or about 7-10 p. m., at
[ 245 Pa. Super. Page 202]
Conoy Twp., Pa. # 441, Lancaster County, the actor did intentionally and knowingly enter onto the property of W. S. Fry & Co., and from the property thereof did remove approximately 400 feet of copper wire, valued at $340.00
all of which were against the peace and dignity of the Commonwealth and contrary to the Act of Assembly, or in violation of 3921 and Sub-section B of the Crimes Code.*fn2
Paragraph 3 of the complaint asked that an arrest warrant be issued. Immediately beneath this paragraph the justice of the peace certified that "the complaint has been properly sworn to and executed before me, and I believe that within affiant to be a responsible person and that there is probable cause for the issuance of process." He then issued the requested warrant.
The trooper served the warrant on appellant at about 8:00 p. m., December 29th, and took appellant to the State Police barracks, where appellant was questioned and gave a statement admitting both thefts. At about
[ 245 Pa. Super. Page 20310]
:00 p. m. appellant was taken before the justice of the peace for preliminary arraignment.
Counsel for appellant filed a motion to suppress appellant's statement, alleging, inter alia, that:
4. The arrest was illegal . . . . The warrant was not based upon an affidavit containing sufficient facts to enable the issuing magistrate independently to conclude that there was probable cause for the arrest.
5. As a result of and as the fruit of the foregoing arrest, the police officer obtained certain statements . . . .
The motion to suppress was heard on June 17, 1974, and was denied. The case was tried on June 18; at the trial, appellant's statement was admitted into evidence over his counsel's objection. Post-trial motions were filed, and by order and opinion of January 10, 1975, were denied.*fn3 On February 21, 1975, sentence was imposed.
In approaching the issue of the legality of appellant's arrest, it is necessary first to note that the arrest had to be effected by warrant. This is so because the offenses
[ 245 Pa. Super. Page 204]
charged were both misdemeanors*fn4 not committed in the presence of the arresting officer and not within any statute specifically authorizing arrest without warrant. See United States v. Watson, 423 U.S. 411, 434, 96 S.Ct. 820, 832, 46 L.Ed.2d 598, 615 (1976) (dissenting opinion by Marshall, J.); Commonwealth v. Cairns, 234 Pa. Super. 331, 338 A.2d 680 (1975) (Price, J., dissenting); Commonwealth v. Kriner, 234 Pa. Super. 230, 338 A.2d 683 (1975) (Watkins, P. J., and Jacobs and Price, JJ., dissenting); Commonwealth v. Modich, 233 Pa. Super. 92, 334 A.2d 717 (1975) (Price and Van der Voort, JJ., dissenting); Commonwealth v. Reeves, 223 Pa. Super. 51, 297 A.2d 142 (1972); Pa.R.Crim.P. 101. Accordingly, if the warrant was invalid, the arrest was illegal.
[It is settled that] before a warrant for either arrest or search can issue . . . the judicial officer issuing such a warrant [must] be supplied with sufficient information to support an independent ...