No. 104 April Term, 1976, Appeal from the Judgment of Sentence imposed September 16, 1975 of the Court of Common Pleas of Allegheny County, Criminal Division at No. CC7501997A.
Bruce A. Carsia, Pittsburgh, for appellant.
Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellee.
Watkins, P. J., and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., concurs in the result. Price, J., files a concurring opinion. Jacobs, President Judge, files a dissenting opinion. Spaeth, J., files a dissenting opinion. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 257 Pa. Super. Page 394]
The instant appeal raises one question: whether an issuing authority*fn1 has the power to issue a search warrant for premises outside of his magisterial district, but within the same county. We conclude that an issuing authority has such authority.
Appellant contends that because there were no extant criminal proceedings against him at the time of the search, the warrant could be issued only by an issuing authority in whose district the search was to take place. This analysis errs in two respects. First it incorrectly equates the phrase "a criminal proceeding", used in Rule 21(a), Pa.R.Crim.P.*fn2
[ 257 Pa. Super. Page 395]
with the phrase "in connection with a criminal proceeding" used in Rule 21(a)(3), Pa.R.Crim.P. While we agree that the former is most accurately defined by Rule 101, Pa.R.Crim.P.,*fn3 relating to how criminal proceedings can be instituted, we hold that Rule 21(a)(3), containing the words "in connection with", is broader in scope and contemplates the issuance of a search warrant before the formal institution of criminal proceedings as defined in Rule 101. Any other interpretation of Rule 21(a)(3) yields a rule which states that a criminal proceeding can be brought whenever a search warrant is authorized in connection with an already instituted proceeding. In short, a proceeding can be brought whenever a proceeding has been brought. The illogic of such a statement is patent.
Instead, for guidance as to the scope of the phrase "in connection with a criminal proceeding," we look to the definition of criminal proceedings in Rule 3(g), Pa.R.Crim.P. Rule 3(g) states that "criminal proceedings include all actions for the enforcement of the Penal Laws." The search
[ 257 Pa. Super. Page 396]
warrant in the instant case was certainly issued for the purpose of enforcing the penal laws of Pennsylvania.*fn4 Therefore, according to Rule 21(a), a criminal proceeding commencing after the issuance of the search warrant, could have been brought before any issuing authority in the county.
The foregoing conclusion suggests the second error in appellant's contention. In focusing exclusively on the question of proper venue for the institution of criminal proceedings, appellant overlooks the fact that criminal proceedings as defined by Rule 101 had not yet commenced; there had not yet been a complaint or arrest. The appropriate question, therefore, is not where a criminal proceeding could be brought pursuant to Rule 21, but whether the ...