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COMMONWEALTH PENNSYLVANIA v. DANIEL JOHN WESTERFER (01/19/82)

filed: January 19, 1982.

COMMONWEALTH OF PENNSYLVANIA,
v.
DANIEL JOHN WESTERFER, APPELLANT



No. 2449 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Montgomery County, No. 5190 of 1979.

COUNSEL

Frederick W. McBrien, III, Norristown, for appellant.

David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Spaeth, Wieand and Johnson, JJ.

Author: Wieand

[ 294 Pa. Super. Page 461]

On September 19, 1979, between the hours of 6:00 a. m. and 5:00 p. m., the residence of George Herman at 1321 Arrowmink Road, Villanova, Lower Merion Township, Montgomery County, was burglarized. Less than one mile from the Herman residence, on the same day, between 2:45 p. m. and 3:45 p. m., the home of Robert P. Barry at 1400 Lafayette Road, Lower Merion Township, was also burglarized. Latent fingerprints were discovered in both homes and lifted by the Lower Merion Township police for future comparison.

One week later, on September 25, 1979, Daniel John Westerfer was arrested in Lower Merion Township, Montgomery County, and charged with offenses committed in Radnor Township, Delaware County. Immediately following his arrest, Westerfer was fingerprinted. A subsequent comparison of appellant's fingerprints with those found in the Herman and Barry residences disclosed that they were identical. On December 5, 1979, Detective William C. Boegly of the Lower Merion Township Police Department obtained a warrant for Westerfer's arrest. It was executed on December 6, 1979, at the Montgomery County Prison. Westerfer was subsequently tried and convicted of burglarizing the Herman residence. Post trial motions were dismissed, and a sentence of imprisonment of not less than 7 1/2 years nor more than 15 years was imposed. This direct appeal followed.

Appellant's first contention is that his arrest on December 6, 1979, should have been quashed because the Commonwealth failed to deliver to him a copy of the affidavit of probable cause which was the basis for the arrest warrant.

[ 294 Pa. Super. Page 462]

He concedes that the Rules of Criminal Procedure contain no such requirement but argues that arrest warrants and search warrants serve so similar a purpose that the rules applicable to the latter should also be applied to the former. It follows, he argues, that there should be applied to the execution of arrest warrants the requirement of Pa.R.Crim.P. 2008(a). This rule provides:

"A law enforcement officer, upon taking property pursuant to a search warrant, shall leave with the person from whom or from whose premises the property was taken a copy of the warrant and affidavit(s) in support thereof, and a receipt, for the property seized. A copy of the warrant and affidavit(s) must be left whether or not any property is seized."

Appellant's argument must be rejected. It is not for this Court to rewrite the Rules of Criminal Procedure and add requirements for the execution of an arrest warrant which the Supreme Court has deemed unnecessary.

Moreover, the analogy suggested by appellant is defective. The constitutional requirements for a valid arrest can readily be distinguished from the constitutional requirements for a lawful search. Warrantless searches are per se unreasonable absent "exigent circumstances," Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), reh. denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971). Unlike a search warrant, an arrest warrant is not a constitutional prerequisite to an arrest. United States v. Miles, 468 F.2d 482, 486 (3rd Cir. 1972). The only constitutional requirement for a valid arrest for the commission of a felony is that the arresting officer have probable cause to believe that the person arrested committed it. United States v. Watson, 423 U.S. 411, 423-24, 96 S.Ct. 820, 827-28, 46 L.Ed.2d 598, 608-09 (1976), reh. denied, 424 U.S. 979, 96 S.Ct. 1488, 47 L.Ed.2d 750 (1976); Draper v. ...


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