No. 2486 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Pennsylvania, at No. 1898-77.
Lawrence Sager, Pottstown, for appellant.
Eric J. Cox, Assistant District Attorney, Conshohocken, with him William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., did not participate in the consideration or decision of this case.
[ 259 Pa. Super. Page 550]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Montgomery County, Pennsylvania, at No. 1898-77. The procedural history and facts relevant to the appeal are as follows:
On May 16, 1977, an agent of the Pennsylvania Society for the Prevention of Cruelty to Animals (S.P.C.A.) armed with a search warrant, went to the premises owned by the appellant and confiscated a total of seventy-six game fowl along with other paraphernalia pertaining thereto. Appellant was issued a citation charging him with cruelty to animals by keeping gamecocks in violation of section 5511(c) of the Pennsylvania Crimes Code.
Following a hearing before District Justice Martin R. Kiggins, appellant was found guilty and fined $100 plus the costs. He appealed to the Court of Common Pleas of Montgomery County. A trial de novo was held before the Honorable William W. Vogel on August 11, 1977. Because certain suppression issues were raised, the court deferred adjudication until September 9, 1977, at which time appellant was adjudicated guilty and sentenced to pay a $100 fine in addition to the costs. A timely appeal followed, with an agreed statement of the record being filed pursuant to Rule 1924 of the Rules of Appellate Procedure.
Appellant contends that the affidavit for the search warrant is fatally defective because it fails to aver facts showing probable cause to search . . . existed up to or about the time of issuance. Our Supreme Court has held that although the information supplied to the magistrate must be tested with a common sense, non-technical, ungrudging and positive attitude, the information must be sufficient to enable the magistrate independently to judge the validity of the affiant's conclusion. Probable cause for the issuance of a search warrant must be established at the time the warrant is issued. Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973). See also: United States v. Bailey, 458 F.2d 408 (9 Cir. 1972); Spinelli v. United States,
[ 259 Pa. Super. Page 551393]
U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
In Commonwealth v. Hagen, 240 Pa. Super. 444, 368 A.2d 318 (1976), we held that evidence of criminal activity at some prior time will not support a finding of probable cause on the date that the warrant issues unless it is also shown that criminal activity continued up to or about the time of issuance. See also Commonwealth v. Eazer, 455 Pa. 320, 312 A.2d 398 (1973); Commonwealth v. Shaw, 444 Pa. 110, 281 A.2d 897 (1971); Commonwealth v. Novak, 233 Pa. Super. 236, 335 A.2d 773 (1975). There, the affidavit alleged prior dates when criminal activity was personally observed, but there were no underlying facts from which a magistrate could make an independent determination that the criminal activity had continued up to or about the time of issuance. Further, Rule 2003(a) of the Pa. Rules of Criminal Procedure makes it clear that sufficient facts must be ...