NO. 586 OCTOBER TERM, 1978, Appeal from the Order of the Court en banc of the Court of Common Pleas of Luzerne County, Criminal Division, dated December 19, 1977, which granted Defendant's Motion for New Trial at No. 2327 of 1975.
Thomas J. Glenn, Jr., Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellant.
Francis P. Burns, Wilkes-Barre, for appellee.
Cercone, Spaeth and Lipez, JJ. Spaeth, J., files a dissenting statement.
[ 262 Pa. Super. Page 314]
Appellee was arrested on October 11, 1975, and charged with Bookmaking, Pool-Selling, Operating a Lottery, Conspiracy. The arrest was made after a search of appellee's home uncovered gambling records, betting tickets, and other gambling paraphernalia. One of the arresting officers took numerous bets over the telephone while appellee's residence was being searched. The search was made pursuant to a search warrant issued before the arrest by a District Magistrate whose office was in the same county, but not in the magisterial district where appellee's home was located and where the search and arrest took place. Appellee was convicted of Bookmaking, Pool-Selling and Operating a Lottery. On December 19, 1977, the Court of Common Pleas of Luzerne County, sitting en banc, granted appellee's motion for new trial on the ground that the issuing Magistrate had no authority to issue a search warrant for premises in a magisterial district other than his own. The Commonwealth assigns this as error. In Commonwealth v. Shaheen, 257 Pa. Super. 393, 390 A.2d 1294 (1978), we held that an issuing authority has the power to issue a search warrant for premises outside of his magisterial district, but within the same county. We, therefore, reverse the Order of the Court en banc granting a new trial and remand the case for sentencing.
SPAETH, Judge, dissenting:
I dissent for the reasons stated in my dissenting opinion in Commonwealth v. Shaheen, 257 Pa. Super. 393, 399, 390 A.2d 1294, 1297 (1978) (SPAETH, J. dissenting).