Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Westmoreland County, No. 667 Crim 1985.
Gregory Cecchetti, Assistant Public Defender, Lower Burrell, for appellant.
Rowley, Johnson and Montgomery, JJ.
[ 368 Pa. Super. Page 238]
Appellant was convicted of third degree murder at the conclusion of a jury trial. Following the denial of post-verdict motions, appellant was sentenced to eight to sixteen years imprisonment. This direct appeal was then timely taken. Appellant raises six issues which primarily concern the denial of his motion to suppress evidence seized from
[ 368 Pa. Super. Page 239]
his residence pursuant to two search warrants issued by different magistrates. For the reasons which follow, we affirm the judgment of sentence.
Appellant was arrested on March 18, 1985 and charged with criminal homicide in connection with the death of Roy Calvin Backes. The following day, Trooper Nusser of the Pennsylvania State police obtained a search warrant from District Justice Shirley Miller. In applying for this warrant, Trooper Nusser verbally related certain facts to the Magistrate. These facts,*fn1 as summarized by the suppression court, were:
After hearing the recitation of these facts, which would clearly support a determination of probable cause, the magistrate instructed Trooper Nusser to reduce the information to a written affidavit. With the assistance of the magistrate's secretary, the affidavit was typed. However, none of the above facts were included in the affidavit of probable cause.
When the completed application for the search warrant was presented to her, the magistrate merely glanced at it before signing it. With the magistrate's certification of probable cause, Trooper Nusser proceeded to execute a search of appellant's residence.
[ 368 Pa. Super. Page 240]
While conducting this search, other items which were thought to be connected to the case were observed. Trooper Nusser promptly sought a second search warrant to seize this additional evidence. The second warrant was issued by District Justice Jeane C. Anderson. The affidavit of the second warrant set forth, inter alia, that while conducting a lawful search of appellant's residence, a pair of blue jeans and a pair of brown cowboy boots, both of which were stained with blood, were discovered. Magistrate Anderson then issued the warrant.
With the second warrant in hand, the trooper resumed the search of appellant's residence. The brown shirt, the subject of the first warrant, as well as the jeans and boots were seized. Appellant filed a motion to suppress this evidence, arguing the lack of sufficient probable cause to support the issuance of the warrants. At the suppression hearing, the Commonwealth agreed with appellant's argument and conceded that both search warrants were invalid. However, the Commonwealth maintained, as it does now, that the case falls within the good faith exception to the exclusionary rule, first announced in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and recently recognized by this court in Commonwealth v. Melilli, 361 Pa. Super. 429, 522 A.2d 1107 (1987). Over ...