No. 127 E.D. Appeal Docket 1984. Appeal from an Order of the Superior Court of Pennsylvania (No. 175 Philadelphia, 1982), dated April 13, 1984, reversing the case and remanding same for a new trial in the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division at No. 1796-78. Pa. Super.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala, and Papadakos, JJ. Zappala, J., concurred in the result.
On January 4, 1979, appellee Gerald Joseph Mason was convicted by a jury in the Court of Common Pleas of Montgomery County of burglary and criminal mischief. That court denied appellee's post-verdict motions and sentenced appellee to a term of imprisonment of six to twenty years on the burglary conviction and three years probation on the conviction for criminal mischief. On direct appeal, a three judge panel of the Superior Court reversed the judgments of sentence and remanded to the Court of Common Pleas for a new trial. 327 Pa. Super. 520, 476 A.2d 389 (1984) (per Montemuro, J., joined by Hester and Cavanaugh, JJ.). We granted the Commonwealth's petition for allowance of appeal to determine the narrow issues of whether the Superior Court erred in holding that the exclusion of evidence was the required remedy for a perceived violation of Rule 2004 of the Pennsylvania Rules of Criminal Procedure ("A search warrant shall be served by a law enforcement officer.") and whether that court erred in holding that the execution of the search warrant in the instant case violated said rule. The pertinent facts are as follows.
On April 6, 1978, appellee and another man were arrested and charged with the burglary of a McDonald's restaurant in Coal Township in Northumberland County. Detective John Crowley of the Montgomery County Police Department had been investigating a very similar burglary of a McDonald's restaurant two days earlier in Douglass Township, Montgomery County.
On the morning of April 6th, Detective Crowley interviewed appellee and his accomplice at the Coal Township police station and concluded that the two men had committed the burglary in Montgomery County. Later that morning, Detective Crowley prepared a search warrant, as affiant,
for the search of appellee's apartment in the city of Reading, Berks County. The information set forth in the warrant and accompanying affidavit clearly established that probable cause existed to believe that evidence or the fruits of the Montgomery County burglary were located at appellee's apartment, and identified with particularity the items to be searched for and seized. Detective Crowley presented the warrant application and affidavit to District Justice George Graeff, a magistrate in Reading, who made a determination that probable cause existed to support the warrant, and issued the warrant at 5:00 p.m. on April 6th.
At approximately 5:20 p.m., Detective Crowley conducted a search of appellee's apartment, assisted by two Montgomery County police officers, and seized several items that further incriminated appellee in the burglary of the Montgomery County McDonald's. Also, as stated by the Superior Court, "[t]wo police officers from the city of Reading . . . accompanied the officers from Montgomery County, and although they were present in [appellee's] apartment when the warrant was executed, they did not participate in the search. . . ." 327 Pa. Super. at 542, 476 A.2d at 400. On April 8, 1978, appellee and his accomplice were arrested and charged with the burglary of the Montgomery County McDonald's.
On appeal, the Superior Court held that the search of appellee's apartment by Montgomery County law enforcement officers violated Rule 2004 of the Pennsylvania Rules of Criminal Procedure, which provides, simply, that: "A search warrant shall be served by a law enforcement officer." The Superior Court stated:
unless there is a grant of authority from the Legislature, a law enforcement officer has no authority to execute a search warrant outside his own territorial jurisdiction. We also hold a search will not be violative of Rule 2004 where the non-jurisdictional police (who have no authority to act) are accompanied by jurisdictional police (with authority to act) who participate in the making and execution of the search, regardless of the degree of Page 401} participation of the jurisdictional police. A search warrant is "executed" or "served" by making and conducting a search. Obviously, there can be no "execution" by police officers who do not participate in the search.
Since the Montgomery County police had no authority to conduct a search of appellant's apartment in the city of Reading, Berks County, and since the Reading police officers who accompanied the Montgomery police did not participate in the search, the search was illegal.
327 Pa. Super. at 547, 476 A.2d at 402-03 (emphasis added). Having concluded that the search violated Rule 2004, the Superior Court then, without analysis or citation of authority, held that:
The introduction of evidence seized in [appellee's] apartment, which was material to the Commonwealth's case and incriminatory of [appellee] relative to the offense for which he was tried, was obtained by an illegal search of his apartment.
It follows, therefore, that the judgment of sentence is reversed and the case is ...