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filed: March 18, 1983.


No. 437 Pittsburgh, 1981, No. 438 Pittsburgh, 1981, Appeals from the Orders of the Court of Common Pleas, Criminal Division, of Washington County, Nos. 157 and 158 of 1981.


Daniel Lucian Chunko, Assistant District Attorney, Washington, for Commonwealth, appellant.

Robert C. Brady, Washington, for appellees.

Rowley, Montemuro and Van der Voort, JJ.

Author: Rowley

[ 312 Pa. Super. Page 3]

These are consolidated appeals by the Commonwealth*fn1 from two orders suppressing evidence seized during a search of appellees' home on the ground that defects in the issuance of the search warrant vitiated the validity of the ensuing search. These two cases were consolidated because they arise from identical facts and present identical issues.

When we review an order suppressing evidence, we are not bound by the trial court's conclusions of law. We are bound, however, by the court's findings of fact if those findings are supported by the record. See e.g., Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Webb, 491 Pa. 329, 421 A.2d 161 (1980); Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980); Commonwealth v. Williams, 287 Pa. Super. 19, 429 A.2d 698 (1981). The courts of this Commonwealth have therefore "refused" "time and again" to substitute their own findings for those of the suppression court, Commonwealth v. Davis, supra, 491 Pa. at 368, 421 A.2d at 181, especially where credibility is at issue, Commonwealth v. Stamm, 286 Pa. Super. 409, 429 A.2d 4 (1981); Commonwealth v. Butch, 257 Pa. Super. 242, 390 A.2d 803 (1978) [court equally divided on other grounds], remanded on other grounds, 487 Pa. 30, 407 A.2d 1302 (1979). Mindful of this scope of review, we now turn to a discussion of the facts which, in this case, are not the subject of any serious dispute.

On January 27, 1981, at some time after 11:00 P.M., Trooper Richard L. Pompei of the Pennsylvania State Police Region Five Narcotics Strike Force appeared before District Justice Clyde Tempest of Mongahela, Pennsylvania, then on

[ 312 Pa. Super. Page 4]

    duty as the night magistrate, for the purpose of obtaining a search warrant. The trooper had prepared a one-page application form which was in substantially the form required by Pa.R.Crim.P. 2006(a). On the application, the trooper had typed information identifying the premises to be searched as the residence of the appellees, setting forth its address and a description of the dwelling. He also identified the items to be searched for and seized as a variety of drugs and drug-related paraphernalia. The trooper had also completed a lengthy affidavit of probable cause setting forth his investigative efforts with respect to Appellee James Chandler's suspected activities as a dealer in narcotics and other controlled substances. Trooper Pompei set forth information obtained from two confidential informants and details allegedly supporting the reliability of the information obtained from them. One of these informants was alleged to have given reliable information on previous occasions which led to three convictions and had also personally obtained from James Chandler a quantity of a substance which, upon later chemical analysis, turned out to contain Pentazocine, a controlled substance under Schedule IV of The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L.233, No. 64, as amended, 35 P.S. § 780-101 et seq., and the regulations of the Secretary of Health promulgated thereunder, 28 Pa. Code § 25.72(e)(2)(ii). Trooper Pompei's affidavit was set forth in part on the application form, but the greater part of the affidavit was contained on two additional typed pages which were attached to the form.

After presentation of the application for the warrant, District Justice Tempest administered an oath to Trooper Pompei and, while under oath and in the presence of the District Justice, Trooper Pompei swore to the truth of the factual content of the application and signed his name both to the bottom of the printed form in the space provided and at the end of the affidavit, i.e. at the end of the second additional typed page. District Justice Tempest then also signed the bottom of the printed form near the Trooper's

[ 312 Pa. Super. Page 5]

    signature and at the end of the affidavit, imprinting his seal in each place as well.

Despite the meticulous care otherwise shown, Trooper Pompei and District Justice Tempest then committed what the suppression hearing judge aptly called "a single fantastic error": the issuance section of the application, which appears on the back of the pre-printed form, was left entirely blank. This section of the form is in substantial compliance with Pa.R.Crim.P. 2006(b). None of the blanks in this section were filled in: no date or time of issuance was specified, no date beyond which the search could be conducted was indicated and the District Justice neither signed in the space provided nor did he affix his seal upon it.

Believing that all was in order, however, Trooper Pompei, accompanied by Troopers Donald Ross and Anthony J. Perella, also members of the Region Five Strike Force, went to appellees' home with the executed documents at approximately 7:50 A.M. on January 28, 1981, barely eight hours after leaving the office of District Justice Tempest. Both appellees were present during the search which resulted in the seizure of several quantities of controlled substances including Talwin, Tuinal and marijuana. The troopers thereupon arrested the Chandlers.

After completing the search and seizing the substances the troopers filled out a form entitled "Receipt/Inventory of Seized Property," describing the material seized and its location when found in the Chandler home. This form was later presented to a different magistrate, District Justice J. Albert Spence, of Washington, Pennsylvania. Trooper Pompei was again placed under oath and the facts concerning the property ...

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