No. 1852 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas - Criminal, of Montgomery County, at No. 1989 A - 76.
George B. Ditter, Assistant Public Defender, Norristown, for appellant.
James A. Cunningham, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hester, J., notes dissent. Spaeth, J., files a dissenting statement. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration of or decision of this case.
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On April 26, 1976, police officers in Abington Township obtained a warrant to search a car usually driven by appellant
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Earl Morris, Jr., and also premises occupied by appellant and his parents. The police had previously received information that appellant had used a BB gun to break several windows in a school, and the purpose of the search was to find that BB gun. The search of the house disclosed pipe bombs and other prohibited offensive weapons. Appellant was arrested and was charged with possession of prohibited offensive weapons and with conspiracy. Appellant's case was called for trial on October 15, 1976, at which time appellant's counsel filed a motion to quash arrest and suppress evidence. The motion was denied by the lower court (according to the lower court's opinion) because it was not filed at least ten days prior to trial, as required by Pa.Rule of Criminal Procedure 323(b). Appellant was tried before a judge sitting without a jury, was convicted of possessing prohibited offensive weapons, and was sentenced on May 16, 1977 to serve a term of one to five years imprisonment. The case is before us on direct appeal.
Appellant argues that his trial counsel was ineffective in failing to file a timely motion to suppress evidence (the weapons), since the evidence was obtained during a search which was conducted pursuant to an invalid search warrant.*fn1 Appellant argues that the warrant is invalid because the underlying affidavit does not set forth any information which would indicate that the item to be seized (the BB gun) belonged to appellant or was being kept by appellant in the trunk of the car or in the house. The affidavit for the search of the house states:
"On March 28, 1976 Earl Eugene Morris, Jr. was arrested by me for Indecent Exposure and for Corrupting the Morals of Robert Harvey, age ten years. On March 29, 1976, Robert Harvey was interviewed by Det. Panichello, Abington Police, and Robert Harvey told Det. Panichello that he had been with Earl Morris, Jr. when Earl Morris,
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Jr. had shot BBs through several windows of the McKinnley (sic) School with an aotomatic (sic) BB gun. Det. Panichello and I believe Robert Harvey because he also told Det. Panichello of several other incidents of a criminal nature that were committed by Earl Morris, Jr. in the presence of other juveniles. When interviewed, those juveniles confirmed the information supplied by Robert Harvey. I know that Earl Morris, Jr. lives at the address specified above, and I believe that he probably keeps the BB gun described by Robert Harvey and specified in this affidavit at that address. That BB gun is needed as evidence in the prosecution of Earl Morris, Jr. for the Crime of Criminal Mischief at the McKinley School that was reported on March 14, 1976."
The affidavit for the search of the car is virtually identical except that it specifies: "and I believe that he ...