No. 11 MAY TERM, 1978, Appeal from the Order of the Superior Court at No. 27 March Term, 1977, Affirming the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Franklin County, Pennsylvania at No. 108 of 1975.
E. Franklin Martin, Asst. Public Defender, for appellant.
John R. Walker, Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen, and Flaherty, JJ. Eagen, C. J., Roberts and Nix, JJ., filed a concurring opinion. Larsen, J., dissents.
Appellant, J. Oscar Wagner, was tried by a jury and convicted of aggravated assault. The Superior Court affirmed per curiam. Commonwealth v. Wagner, 250 Pa. Super. 644, 379 A.2d 615 (1977). Post trial motions were denied. In the appeal before us, appellant contends, inter alia, that he was the subject of an unlawful arrest. We agree and accordingly reverse the judgment of sentence and discharge the appellant.
The relevant facts are these: one Veloris Dean was charged with and plead guilty to the theft of various tools and equipment. The theft occurred in July, 1974. At sentencing, Dean volunteered information implicating appellant as an accomplice. A state trooper who was in the courtroom at the time of sentencing overheard this colloquy between the court and Dean. Later, upon further questioning, Dean advised the trooper that appellant had participated in the theft, that he had split the stolen property and money with Dean, and that he was living with Dean's sister, Vellora Short, at 535 Rife Street, Chambersburg, Pennsylvania. Dean described appellant's automobile as "a white Hornet with the rear end or trunk lid smashed in."
The trooper relayed this information to his superiors, who thereupon directed Trooper R. W. Lingenfelter to obtain a warrant for appellant's arrest and to apprehend him. Lingenfelter proceeded to the Office of the District Justice, where he relayed the facts. After the Complaint was prepared, Lingenfelter was put under oath by the District Justice and swore to the facts set forth in the Complaint, which are as follows:
"Count 1 THEFT -- That he did there and then unlawfully take or exercise unlawful control over, movable property of another with intent to deprive him thereof. Items stolen were: various Quarry tools, belonging to Joseph R. Zeek, R.D. 1, Orrstown, Pa. 17240. Value of items $150.00 Count 2 -- THEFT -- That he did there and then unlawfully or exercises unlawful control over movable property of another with intent to deprive him thereof. Items stolen were approx. 140 lb. copper wire and damaged a security light. Total value $175.00, belonging to Adams Ele. Co. Op. 204 W. King Street, Shippensburg, Pa. 17257 . . ."
Based upon these facts, the District Justice concluded that there was probable cause to issue an arrest warrant and so issued one at approximately 3:45 p. m. on January 15, 1975.
Trooper Lingenfelter proceeded immediately to 535 Rife Street in search of appellant. No one was home and he did not observe the white Hornet in the area.
Lingenfelter returned to 535 Rife Street at approximately 7:30 p. m. that evening. This time he observed the white Hornet with the smashed-in trunk lid, and as he approached the house he observed a man dart past the window. A small boy, approximately five or six years old, answered the trooper's knock and told him that the appellant was there. Mrs. Short, the owner of the premises, then came to the door and in response to the trooper's request stated that appellant was not there. At the same time the little boy repeated several times that appellant was in the home.
Trooper Lingenfelter left the premises and reported to his superior that he believed appellant was in the home. He was advised that Trooper David Burke would be sent to assist him.
Accompanied by Trooper Burke, Trooper Lingenfelter returned to 535 Rife Street at about 8:00 p. m. Mrs. Short answered the door. Trooper Lingenfelter identified himself as a police officer, stepped into the home, stated that he had an arrest warrant for appellant and that he ...