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argued: February 9, 1982.



Stella L. Smetanka, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.

Robert L. Simmons, Pittsburgh, for appellee.

Brosky, Cirillo and Popovich, JJ. Brosky, J., files dissenting opinion.

Author: Popovich

[ 302 Pa. Super. Page 87]

This is an appeal by the Commonwealth from the grant of appellee's, Roy L. Hamlin's, Motion to Suppress on April 21, 1981, by the Court of Common Pleas of Allegheny County. We reverse and remand.*fn1

[ 302 Pa. Super. Page 88]

The facts, as garnered from the record, consist of the following: About 10:00 A.M. on September 5, 1980, Lieutenant Charles E. Coughlin, a City of McKeesport police officer, drafted an application for a search of the appellee's residence. At 1:30 P.M., the application was taken to the District Magistrate. The Magistrate approved the warrant, which authorized the affiant to search the premises described "as soon as practicable but in no event later than 8:00 A.M. . . . Sept. 8, 1980." After securing the warrant, Lt. Coughlin informed the search team that it would be executed at 7:00 A.M. the next morning, September 6th. At the scheduled time, the police met at the station and then made their way to the appellee's premises, arriving at the location about 7:45 A.M. At first, Lt. Coughlin knocked on a set of storm doors on the exterior portion of the two-story apartment building and identified himself. Upon receiving no response, the officer entered a vestibule area and knocked on another door, again giving his identity. Still, there was no answer. After waiting for a period of time, Lt. Coughlin opened the main door to the building and went to appellee's door, which was the first one on the right. He knocked 10 or 12 times, and even kicked on the bottom of

[ 302 Pa. Super. Page 89]

    the door, while "holler[ing] 'Police, police, we have a search warrant.'" (RR. 23a) Lt. Coughlin received no answer, yet he heard voices inside the apartment. The officer, for the next three minutes, continued to knock, all the while announcing his identity and purpose. When his efforts to obtain access to the apartment proved fruitless, he utilized a key secured from the landlord to gain entry. Once inside, the police observed the appellee and a Ms. Dreker (a co-defendant) in the room. Lt. Coughlin identified himself and gave the appellee a copy of the warrant. A search of the premises produced a quantity of cocaine and resulted in the occupants being arrested.

A suppression hearing was held in the instant case. At that time, Lt. Coughlin recounted how the search warrant was prepared on September 5, 1980 and issued by the Magistrate that same day, around 2:00 P.M. However, the defense pointed out that the face of the warrant indicated to the contrary, i.e., that it was issued on the 6th day of September, 1980, at 8:00 A.M. To clarify the matter, the Magistrate testified that he erred when filling in the spaces provided for on the document as to the date and time the warrant was issued. The witness attributed this misfeasance to the fact that when the police informed him that "they were going to search the place the next morning at eight o'clock . . . . [he] made the mistake. [He] put the 6th day, eight o'clock, when he signed it[,]" (RR. 42a), instead of September 5th at 2:00 P.M.

The suppression court disbelieved the Magistrate's version that the error was the product of "an honest mistake." Instead, the court found "that the warrant was deliberately post-dated rather than misdated." Consequently, all evidence seized pursuant to the invalidity issued warrant was suppressed. This appeal followed.

The Commonwealth asserts that the court abused its discretion in concluding from the evidence adduced at the suppression hearing that the date which the Magistrate noted on the search warrant was a purposeful act. Furthermore, the Commonwealth contends that appellee suffered no

[ 302 Pa. Super. Page 90]

    violation of his Fourth Amendment rights as a result of the misdating. We agree.

As was stated in Commonwealth v. Johnson, 467 Pa. 146, 151-52, 354 A.2d 886, 889 (1976):

"In reviewing th[e] ruling [of a suppression court,] our initial task is to determine whether the factual findings are supported by the record. 'In making this determination, we are to consider only the evidence of the prosecution's witnesses and so much evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted.' Commonwealth v. Goodwin, 460 Pa. 516, 522, 333 A.2d 892, 895 (1975). If, when so viewed, the evidence supports the factual findings we are bound by such findings; we may only reverse if the legal conclusions drawn therefrom are in error." (Footnote omitted)

Reviewing the Commonwealth's argument in light of this standard, we are convinced the suppression court was incorrect in ruling that the evidence seized was the product of an illegally drawn search warrant.

In making a determination as to the legal effect of the issuing authority's affixing the wrong date and time to the warrant, this Court looks to the decisions in Commonwealth v. Swint, 256 Pa. Super. 169, 389 A.2d 654 (1978) and Commonwealth v. Chinea, 246 Pa. Super. 494, 371 A.2d 944 (1977) for guidance. Before doing so, however, we observe that Pa.R.Crim.P. 2005 requires, inter alia, that a search warrant shall specify the date and time of its issuance. Nonetheless, Rule 2005 has not been interpreted in such a hypertechnical manner so as to equate all errors associated with the issuance of a warrant to be violative of one's Fourth Amendment rights. For example, in Commonwealth v. Chinea, supra, the officers applied for a warrant on November 18, 1975, and executed it the same day. Evidence was presented that the warrant affidavit was sworn to and subscribed on November 18, 1975. However, the magistrate inadvertently entered the following time of issuance: "Issued under my hand this 18th day of 1975, 1975, at 5:00 p. m. o'clock."

[ 302 Pa. Super. Page 91]

The incorrect date and time occasioned by the issuing authority's mistake in the case at bar, like the misdating in Swint and the error in Chinea, did not leave the suppression court or this Court unable to review the propriety of the issuance and execution of the warrant. Instantly, we are confronted with the uncontroverted testimony of Lt. Coughlin and the District Magistrate that the warrant was applied for on September 5, 1980, and executed the next day, which is precisely within the two-day time limit prescribed by Pa.R.Crim.P. 2005(d), "if one assumes that the warrant was issued on [September 5, 1980, at 2:00 P.M.]" Commonwealth v. Chinea, supra, 246 Pa. Super. at 497, 371 A.2d at 946. Thus, as did the court in Chinea, we reach the inescapable conclusion that when the District Magistrate entered: "Issued under my hand this 6th day of Sept, 1980, at 8:00 A.M. o'clock", he clearly intended to enter September 5, 1980, at 2:00 P.M., as the date of issuance. Id. This conclusion comports with the tenet that, "searches conducted pursuant to warrants are to be favored over warrantless searches and thus '. . . must be tested with a commonsense, non-technical, ungrudging and positive attitude . . . .'" (Citation omitted) Commonwealth v. Wilds, 240 Pa. Super. 278, 286, 362 A.2d 273, 277 (1976).

Additionally, we cannot discount the fact that appellant has failed to show how he has been prejudiced by the mistake, and, thus, we can perceive of no reason why he should enjoy the windfall of having the evidence suppressed under the guise of precluding the Commonwealth from, as the lower court phrased it, "play[ing] fast and loose with a search warrant." (Lower Court Opinion at 2) Our review of the evidence lends no credence to such characterization by the lower court. Quite the contrary, we observe, in considering the evidence of the prosecution's witnesses, Commonwealth v. Johnson, supra, that the police executed the warrant well within the time strictures of Pa.R.Crim.P. 2005; therefore, we can perceive of no advantage accruing to the authorities by having the document postdated. Moreover,

[ 302 Pa. Super. Page 93]

    our examination of the record indicates that there is insufficient evidence to prove that the police and/or District Magistrate altered or filled in the document subsequent to the search to legitimize the seizure occasioned by its execution. As a result, given the facts of record, we disagree with the legal conclusions drawn therefrom by the lower court. Commonwealth v. Johnson, supra.

Accordingly, we reverse the order of April 21, 1981, and remand for further proceedings.*fn2 Jurisdiction is not retained by this Court.

BROSKY, Judge, dissenting:

I respectfully dissent.

In Commonwealth v. Melton, 402 Pa. 628, 629, 168 A.2d 328, 329 (1961), our Supreme Court said:

It is only where the question involved is purely one of law that the Commonwealth may appeal from an adverse ruling in a criminal case . . . . Where . . . the reason for the action of the trial court, whereof the Commonwealth complains, is based upon a mixture of law and fact, the Commonwealth is without any right to appeal therefrom.

(Emphasis added.) See also: Commonwealth v. Ray, 448 Pa. 307, 312, 292 A.2d 410, 413 (1977); Commonwealth v. Iacavazzi, 297 Pa. Super. 200, 204, 443 A.2d 795, 797 (1981); Commonwealth v. Kunkel, 254 Pa. Super. 5, 385 A.2d 496 (1979); Commonwealth v. DeFelice, 248 Pa. Super. 516, 522, 375 A.2d 360, 363 (1977). I would hold that the Commonwealth cannot appeal from the order of the trial court.

[ 302 Pa. Super. Page 94]

The suppression court judge, Judge Maurice Louik, correctly stated in his opinion for the court:

It is within the discretion of the trial Court whether or not to allow amendments under Rule 150 of the Pa.R.Crim.P. Commonwealth v. Lardo, 240 Pa. Super. 107, 368 A.2d 324, 329 (1976). Since this Court finds that the search warrant was improperly issued, i.e., it was postdated, the Commonwealth will not be permitted to amend the warrant.

The issuing magistrate, Howard D. Lindberg, appears to have purposely postdated the search warrant. Mr. Lindberg testified that he was told the police intended to execute the warrant at 8:00 A.M. on September 6. He then assigned a time of issuance that was identical to the intended time of the search.

It was not contended by the Commonwealth that the magistrate mistakenly wrote 8:00 A.M. September 6, 1980 instead of 2:00 P.M. September 5, 1980. It appears that the time of 8:00 A.M. September 6, 1980 was purposely and deliberately inserted instead of the actual time when the warrant was issued.

The Commonwealth finds itself on the horns of a dilemma. If the warrant was issued on September 5, 1980, at 2:00 P.M., it was postdated and improper. If the warrant was issued and intended to be issued at 8:00 A.M. September 6, 1980, it was improperly executed prior to the time of issuance. Commonwealth v. Swint, 256 Pa. Super. 169, 389 A.2d 654 (1978), is inapplicable to the instant case; since this Court finds that the warrant was deliberately postdated rather than misdated. Also, Commonwealth v. Chinea, 246 Pa. Super. 494, 371 A.2d 944 (1974), is inapplicable, since the postdating of a search warrant cannot be equated with "a minor typographical error."

[ 302 Pa. Super. Page ]

(Trial Court Opinion Pages 1-2) I agree with Judge Louik's opinion. Therefore, I cannot agree with the majority that an appeal by the Commonwealth is permitted.

[ 302 Pa. Super. Page 95]

Clearly, if this were an error which I could reasonably find involved the unintentional misdating of a search warrant, Commonwealth v. Swint, 256 Pa. Super. 169, 389 A.2d 654 (1978), or "a minor typographical error," Commonwealth v. Chinea, 246 Pa. Super. 494, 371 A.2d 944 (1974), I would agree that the Commonwealth could appeal. Under those circumstances, I would hold that the decision of the trial court was "purely one of law." However, as Judge Louik indicates in his opinion, the decision of the suppression court required a factual determination as to whether the search warrant was or was not deliberately postdated. The decision depended in its entirety upon the suppression court's appraisal of the credibility of the testimony of the magistrate. The court found the magistrate's testimony incredible. Certainly, this is a factual decision.*fn1 Accordingly, I would hold that the reason for the suppression court's holding was "based upon a mixture of law and fact, . . ." I would quash the Commonwealth's appeal.

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