No. 276 April Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Mercer County, Criminal Division, at Nos. 359 and 363 Criminal 1977
Timothy R. Bonner, Grove City, for appellant.
Ross E. Cardas, Assistant District Attorney, Mercer, for Commonwealth, appellee.
Price, Brosky and Montgomery, JJ. Price, J., files a dissenting statement.
[ 289 Pa. Super. Page 386]
Appellant and John Rickie Mathieson were convicted, after a non-jury trial, at which they were co-defendants, of several counts of burglary. Appellant was convicted on two counts and acquitted on one. Bowers brought post-verdict motions which were denied. Appellant was sentenced to one to three years imprisonment. We reverse the decision of the trial court and remand for a new trial.
Appellant's co-defendant, Mathieson, appealed to this court in Commonwealth v. Mathieson, 277 Pa. Super. 413, 419 A.2d 1213 (1980). Mathieson raised several questions for our court's review, included in which, was the issue regarding the sufficiency of the evidence used to support a finding of probable cause for a search warrant. Our court held the search warrant was defective because "the affidavit contained in the application for the search warrant . . . did not
[ 289 Pa. Super. Page 387]
present the issuing authority information sufficient to justify his issuing the warrant, . . . ." Id., 277 Pa. Super. at 419 A.2d at 1214.*fn1 Thus, Mathieson's second claim, namely, that there was insufficient evidence to support a conviction of him was not discussed. He was granted a new trial.
Included among the issues raised in the instant case are the identical contentions raised by Mathieson. Bowers claims that his motion to suppress should have been granted because the warrant was not supported by credible and reliable information from informants sufficient to establish the existence of probable cause to search appellant's house. He asserts that the search warrant does not, on its face, state sufficient probable cause to justify a search of his home. He contends that the trial court erred in overruling his objection to the admittance of statements made by his co-defendant after the termination of the conspiracy and, finally, that the trial court possessed insufficient evidence upon which to convict him.
It is not necessary to discuss any other issue in the instant case having determined that the decision in Commonwealth v. Mathieson, supra, requires that we hold that the issuing authority lacked sufficient reliable information to justify his issuing a search warrant. Accordingly, we reverse the judgment of sentence of the trial court and remand for a new trial.
PRICE, Judge, dissenting:
I do not agree with the analysis of this search warrant contained in the panel opinion in Commonwealth v. Mathieson, 277 Pa. Super. 413, 419 A.2d ...