No. 2496 October Term, 1977, Appeal from Judgment of conviction and sentence of the Court of Common Pleas of Montgomery County, Criminal No. 375-77.
Frederick W. McBrien, III, Norristown, for appellant.
Eric J. Cox, Assistant District Attorney, Chief, Appeals Division, Norristown, for Commonwealth, appellee.
Van der Voort, Watkins and Montgomery, JJ. Van der Voort, J., files a dissenting opinion.
[ 268 Pa. Super. Page 261]
This is an appeal by the defendant-appellant, William F. Ryan, from the judgment of sentence of the Court of Common Pleas of Montgomery County, Criminal Division, after conviction by a jury on ten counts of theft by receiving stolen property; and from the denial of post-trial motions.
[ 268 Pa. Super. Page 262]
On January 3, 1977 and January 4, 1977, the Pennsylvania State Police and Philadelphia Police executed two separate search warrants upon the premises of Connor's Used Auto Parts in Conshohocken, Pennsylvania. On January 17, 1977, the defendant was arrested and charged with various counts of receiving stolen property, possession of an automobile with a defaced serial number, and one count of criminal mischief in excess of $5,000.00. After his preliminary hearing, the defendant filed a motion to suppress the evidence obtained pursuant to the search warrants. The petition to suppress the evidence attacked the reliability of the informant on whose information the original search warrant was issued; the service and execution of the search warrants; alleged that the information supplied by the informant was stale and that the warrant was not issued upon a showing of probable cause. He also alleges that since the second search warrant was based upon information gathered as the result of the original search that it too should have been suppressed because it was based upon information unlawfully gathered and, therefore, should be suppressed as the fruit of an unlawful search.
At the suppression hearing, the Commonwealth produced the search warrants and the accompanying affidavits and rested its case without producing any witnesses or testimony. The court denied defendant's motion to suppress and the case then proceeded to trial before a jury on June 15, 1977. On June 22, 1977, the jury returned a verdict of guilty against the defendant to ten counts of receiving stolen property. The defendant was sentenced to a term in prison of two and one-half to five years. Defendant appealed.
At argument, the court heard Commonwealth's motion to quash the appeal for failure of the defendant to comply with the Pennsylvania Rules of Appellate Procedure with respect to the form and content of reproduced records. The defendant filed an answer to the Commonwealth's petition to quash admitting certain technical defects in its brief but also alleging that the reproduced record was filed prior to the September 12, 1978 argument date pursuant to President
[ 268 Pa. Super. Page 263]
Judge Jacobs' directive. Since it appears that the defendant did comply with Judge Jacobs' directive, we will deny the Commonwealth's motion to quash.
Defendant's first allegation of error is that the evidence seized pursuant to the search warrants should have been suppressed by the court below because the District Justice failed to forward an inventory of the seized items to the Clerk of Courts as required by Pennsylvania Rule of Criminal Procedure No. 2010. The rule does require the judicial officer to whom a search warrant is returned to file the search warrant, all supporting affidavits, and the inventory of seized items with the Clerk of Court. However, failure to do this does not require the suppression of all evidence seized by the police pursuant to the search warrant. The failure to file the inventory with the Clerk of Courts office did not violate any of defendant's constitutional rights, did not invalidate the search warrant, nor did it affect its execution. Therefore, we hold that the failure of the district justice to return ...