NO. 02237 PHILA. 1983, Appeal from the Order in the Court of Common Pleas of Delaware County, No. 2424 of 1983
Sandra L. Elias, Deputy District Attorney, Media, for Com., appellant.
Nicholas J. Caniglia, Wayne, for appellee.
Spaeth, President Judge, and Beck and Hoffman, JJ.
[ 332 Pa. Super. Page 260]
This appeal is from an order suppressing evidence. The trial court ordered the evidence suppressed because it found that the search warrant was executed after 10 p.m. although the Commonwealth in the affidavit in support of the warrant did not request authority for a nighttime search, as required by Rule 2003(c) of the Pennsylvania Rules of Criminal Procedure. We hold that despite the Commonwealth's violation of Rule 2003(c), the evidence should not have been suppressed. The trial court's order will therefore be reversed and the case remanded for further proceedings.
We must first decide whether the order suppressing evidence is appealable. (Appellee has filed a motion to quash the appeal, but even without such a motion, we should have to decide appealability.) In Commonwealth v. Lapia, 311 Pa. Super. 264, 270, 457 A.2d 877, 880 (1983), we held that "an order suppressing evidence is appealable when it is apparent from the record that the order terminates or substantially handicaps the prosecution." Here, appellee was charged with possession of, and possession with intent to deliver, controlled substances. In executing the warrant, the police found marijuana, cocaine and drug paraphernalia. Without this evidence the prosecution of appellee would have to be terminated. As we said in Lapia, "[T]he Commonwealth cannot prove a defendant's possession of a controlled substance unless it can prove that it took the substance from the defendant." 311 Pa. Super. at 282-283, 457 A.2d at 885. The order suppressing the evidence is therefore appealable, and appellee's motion to quash will be denied.
Rule 2003(c) of the Pennsylvania Rules of Criminal Procedure provides that "[n]o search warrant shall authorize
[ 332 Pa. Super. Page 261]
a nighttime search unless the affidavits show reasonable cause for such nighttime search." "Nighttime" is between the hours of 10 p.m. and 6 a.m. See Pa.R.Crim.P. 2005(e) ("daytime" is between the hours of 6 a.m. and 10 p.m.). "Reasonable cause" for a nighttime search, as distinguished from probable cause to search, means reasons why the search cannot wait until morning. Commonwealth v. Baldwin, 253 Pa. Super. 1, 4, 384 A.2d 945, 947 (1978).
In ordering the evidence suppressed, the trial court recognized our decision in Commonwealth v. Johnson, 315 Pa. Super. 579, 462 A.2d 743 (1983), but found it "factually and legally distinguishable." Slip op. at 13. We have concluded, however, that Johnson is controlling.
In Johnson, the police, on the basis of an informant's tip, applied for a search warrant sometime after 10 p.m. The affidavit requested a nighttime search warrant, and the warrant was executed at about 10:55 p.m. Here, a police informant purchased marijuana from appellee at about 8:30 p.m. Shortly thereafter, the police obtained the search warrant. The affidavit in support of the warrant did not request authority for a nighttime search. The trial court, after hearing conflicting testimony, found that the warrant was nevertheless executed after 10 p.m.*fn1 Thus, there are differences between Johnson and this case: in Johnson the police applied for the warrant after 10 p.m. (here, they applied before 10 p.m.), and in ...