*1 friends, merely Konz visit Sunday the During 696?5 at to see him. wanted of the visitors see if one called out to at (which intestinal ailment Konz had an told that When to see chose not correct), the visitor was least superficially nor is see anyone; he wanted to not say him. Konz did or imprisoned if he had felt think that reason to there any bed- out of his have walked isolated, simply could not he aid. the visitor’s room, out and enlisted or called Konz left two times that ignores further majority The inside the When Konz was the weekend. during the house nurse, to a wife, talking Saturday night, his with hospital surrounding presumably equipment with staff and hospital of the will. the basis his On him, against he was not isolated frus- longer being was no record, assume that he one must not did but help, to medical attempt get trated in any want it. court. of the lower the order
I should affirm Pennsylvania of COMMONWEALTH Jr., MORRIS, Appellant. Pennsylvania. Superior Court 31, 1978. March Submitted Decided case, aspect emphasis of the repeated on this 5. Because of its rather majority regard appellees’ of commission acts as acts seems presented way the Commonwealth than omission. That is not indeed, case; more seem to lead of commission would acts mánslaughter. involuntary charge appropriately of murder than to a *3 Norristown, Defender, Public Ditter, Assistant B. George appellant. for Nor- Attorney, District A. Assistant Cunningham,
James Commonwealth, ristown, appellee. for HOFFMAN, CER- JACOBS, Judge, and Before President HESTER, VOORT, PRICE, CONE, VAN der SPAETH JJ. VOORT, Judge: der
VAN Township 1976, officers in 26, police On appel- driven usually by a car obtained a warrant to search lant Morris, Jr., and also premises occupied by appellant and his parents. The police had received previously infor- mation that appellant had used a BB to gun break several windows in school, a and the purpose of the search was to find that BB gun. The search of the house disclosed pipe bombs and other prohibited offensive weapons. Appellant was arrested and was charged with possession of prohibited offensive weapons and with conspiracy. Appellant’s case was called for 15, trial on October at which time appellant’s counsel filed a motion to quash arrest and sup- press evidence. The motion was by denied the lower court to (according the lower court’s opinion) because it was not filed at least trial, ten days prior to as required Pa.Rule of Criminal Procedure 323(b). Appellant was tried before a judge sitting without a jury, was convicted of possessing prohibited offensive weapons, and was sentenced on May 1977 to serve a term of one to five years imprisonment. The case is before us on direct appeal.
Appellant argues that his trial counsel was ineffec tive in failing to file a motion to timely suppress evidence (the weapons), since the evidence was obtained during search which was conducted pursuant to an invalid search warrant.1 Appellant argues the warrant is invalid because the underlying affidavit does not set forth any information which would indicate that the item to be seized (the BB gun) belonged appellant or was being kept by the trunk of the car or in the house. The affidavit for the search of the house states:
“On March
Morris,
Earl Eugene
Jr. was arrested
*4
mb
by
for Indecent Exposure and for
the
Corrupting
Morals of Robert Harvey, age
ten years. On March
1976, Robert
was
Harvey
Panichello,
interviewed by Det.
Police,
and Robert
told
Harvey
Det. Panichello
that he had been
Morris,
with Earl
Morris,
Jr. when Earl
represented
appeal
1. Since
by
is
counsel other than
represented
level,
counsel who
him
grounds
at the trial
and since the
appeal appear
record,
for the
the issue of ineffective assistance of
properly
counsel
is
appeal.
raised for the first time on direct
Com-
Burch,
8, 13,
Pa.Super.
monwealth v.
(1977).
248
593 shot BBs several windows of the McKinn- through Jr. had BB (sic) (sic) gun. with an aotomatic Det. ley School I he also Panichello and believe Robert because Harvey other incidents of a crimi- told Det. Panichello of several Morris, nal were Jr. in the by nature that committed interviewed, of other When those presence juveniles. supplied confirmed the information Robert juveniles by Morris, I at the know that Earl Jr. lives address Harvey. above, and I believe that he specified probably keeps BB in this gun Harvey specified described Robert by BB is needed as gun affidavit at that address. That Morris, evidence in the of Earl Jr. for the prosecution Crime of Criminal Mischief at the that McKinley School was on March 1976.” reported identical virtually The affidavit for the search of the car is that it “and I believe that he that except specifies: keeps BB in that car.” gun
When an affidavit
a search warrant
is
supporting
informant,
based
information
an
upon hearsay
supplied by
issuing magistrate
must be informed of some of the
relied on
the informant
in
underlying circumstances
by
that
the contraband or other evidence is in the
concluding
Texas,
108, 114,
place specified. Aguilar v.
84
U.S.
S.Ct.
(1964).
Counsel’s assistance be deemed effective if we are able to conclude that the particular designed course chosen counsel had some reasonable basis *5 594
to
the client’s interests. Commonwealth ex rel.
effectuate
599, 604,
427 Pa.
“[W]hen whether counsel acted ... a reasoned pursuant course, the is to remand the record for an proper remedy Morin, the issue.” v. evidentiary hearing on Commonwealth 80, 84, (1978). 477 Pa. 383 A.2d 833 Commonwealth See we (1975). Accordingly, 460 Pa. Twiggs, remand this case to the lower court for an evidentiary of fact and a determination of whether findings for hearing ineffective for to file a failing trial counsel was appellant’s appel motion.2 In whether timely suppression determining motion, should have filed such a the lower lant’s counsel following: court must consider the 1) Whether father consented to the search of appellant’s car, room) the house and/or and (including appellant’s whether the father owned the house and car and could consented; have legally the house
2) Whether consented to the search of appellant car; and/or to raise the issue of
3) standing Whether has room, house, including the search of the own appellant’s that some or all of of the car. If the lower court determines only argument appeal Appellant’s court should other is that our not, position in order to reverse its the Commonwealth need 908, prove that the accused § obtain a conviction under 18 Pa.C.S. employ prohibited weapon in a criminal intended to offensive Walton, Pa.Super. 380 A.2d manner. See Commonwealth v. 252 (1977). position on this We are not inclined to reverse our issue. appellant’s evidence would have been had suppressed and that counsel *6 filed a motion timely suppression counsel motion, to file such a failing was therefore ineffective for trial. grant then the lower court shall a new Should that a motion would have suppression lower court determine so ineffectual, shall issue an order then court been from the order of the may appeal Either stating. party lower court.
HESTER, J., dissent. notes SPAETH, J., statement. dissenting files JACOBS, HOFFMAN, J., did Judge, former President and not in the consideration of or decision of this participate case. SPAETH, Judge, dissenting: reverse, me, I should for it seems clear to without a remand, that counsel was ineffective. Associates, Ray and Kaiser Inc. KAISER MEINZER, Henry Gallagher, Walter J. Commonwealth Land Company, Development Title Insurance Commonwealth and Company, Bank, Construction Chemical and National Union Company Hyam, Pittsburgh George Fire Insurance Additional Defendant. Appeal of COMMONWEALTH DEVELOPMENT AND COMPANY. CONSTRUCTION Superior Pennsylvania. Court of Argued March 1979. April Decided 1979. Appeal Petition for Allowance of Granted