*1 COMMONWEALTH of SHAHEEN, Appellant. Leslie Superior Court of
Submitted Nov. 1976. July Decided *2 Carsia, for appellant. Pittsburgh, Bruce A. Colville, Attorney, Pittsburgh, District for Com-
Robert E. monwealth, appellee. WATKINS, J., JACOBS, HOFFMAN, and CER-
Before P. SPAETH, CONE, and JJ. PRICE, VAN der VOORT HOFFMAN, Judge: raises one whether an appeal question:
The instant has the issue a search warrant issuing authority1 power within of his but premises for outside We that an has authority the same conclude county. authority. such no because there were extant contends
Appellant search, criminal him the time against proceedings in issuing authority be the warrant could This analysis the search was to take place. whose district equates phrase respects. incorrectly errs two First 21(a), used Rule Pa.R.Crim.P.2 “a criminal proceeding”, Pa.R.Crim.P., Appendix, 3(j), P.S. defines 1. Rule “any having power public official and an aider- as man, justice.” peace, magistrate,- or district pertinent part: provides Rule “VENUE proceeding” “in connection with a criminal
with the phrase 21(a)(3), agree Pa.R.Crim.P. While we used Rule 101, Pa.R. defined Rule accurately former is most be insti- Crirn.P.,3 proceedings to how criminal relating tuted, 21(a)(3), the words “in containing we hold that with”, scope contemplates connection is broader institution of issuance of a search warrant before the formal Any criminal as defined in Rule 101. other proceedings which states that interpretation 21(a)(3) yields of Rule a rule a a criminal can be whenever proceeding brought in connection with an institut- already is authorized short, brought ed a can be when- proceeding. proceeding ever such brought. illogic has been a proceeding patent. statement
Instead, scope phrase as to the guidance proceeding,” “in connection with a criminal we look to *3 proceedings 3(g), definition of criminal Rule Pa.R.Crim.P. include all ac proceedings Rule states that “criminal 3(g) of the Penal Laws.” The search tions for the enforcement brought issuing proceedings “All before the au- criminal shall be thority magisterial alleged is for the district where the offense authority temporary assign- issuing have on occurred or before an magisterial subject, ment to serve such to the following exceptions: any “(a) proceeding may brought A criminal be before any magisterial county of district within the whenever: any “1. a statute has heretofore fixed or venue within district; county particular county judicial or a or or particular place “2. the within the where the offense is unknown; alleged to have occurred is or “3. the issuance of a search is authorized in connection warrant proceeding.” with a criminal provides: 3. Rule 101 by: proceedings “Criminal “1. a written in court cases shall be instituted complaint; or felony an a warrant when offense is a or “2. arrest without the police making presence officer misdemeanor committed the arrest; or upon probable “3. an arrest without a warrant cause when the felony; offense is a or upon probable “4. without a warrant cause when the an arrest presence police is not committed in the offense officer a misdemeanor arrest, making is when such arrest without a warrant by specifically statute.” authorized was for certainly instant case laws of enforcing penal purpose 21(a), a criminal Therefore, proceeding to Rule according warrant, could the issuance of the commencing after in the any issuing authority before brought have been county. suggests the second error
The conclusion foregoing exclusively ques- on the focusing contention. for the institution of criminal proceed- tion of venue proper proceedings overlooks the fact that criminal ings, appellant commenced; had Rule 101 had not there yet as defined ques- or arrest. The appropriate not been a yet complaint be tion, therefore, not where a criminal could proceeding to Rule but whether brought pursuant to issue the search warrant the instant case had magisterial for of his district. premises outside Pa.R.Crim.P., search warrant states that “[a] issuing authority having jurisdiction be issued may courts of appellate to be searched.” person place question not confronted yet directly have jurisdiction.5 magisterial of thé territorial parameters We find reasons compelling Appellant issued “not for the asserts that the search warrant was enforcement, purpose gather evidence for the of ‘enforcement’ but to accomplished by complaint We find this distinc- which is or arrest.” encompasses is a term which all the tion untenable. Enforcement preliminary stages criminal from in the administration of investigation acquittal. It cannot be limited artifi- to conviction or cially complaint and arrest. *4 459, 361 Myers, Pa.Super. (1976), In 239 A.2d
5. Commonwealth 884 County justice peace to search issued a Chester premises of the County. appel We held “neither the located Lancaster County. was in lant nor the residence Chester therefore, jurisdiction peace, to issue the was without warrant,” supra, Pa.Super. at 885. search 239 361 A.2d Myers, to in the instant case issued a Unlike the county containing magisterial premises in the his located Moreover, Myers, upon by relied the district. dissenting the statement authority’s jurisdiction issuing opinions extends that an elected, is dictum. Wé do not to the district in which he was language persuasive authority for dis the consider this unfortunate senting position. areas populated wide. In county sparsely is jurisdiction authorities, wide county the need issuing with few for effective law imperative is often magisterial jurisdiction counties, officials Even in more populated enforcement. investigative flexibility county need the frequently would confer.6 wide to the applies only Rule 21 we hold that summary, proceedings. institution of criminal venue for the proper case. In has no in the instant application Accordingly, stead, scope our is the territorial the before Court question we conclude jurisdiction. Because issuing authority’s of an wide, the magistrate we hold that is instant case. the search warrant properly of sentence affirmed. Judgment VOORT, J., in the result. VAN der concurs PRICE, J., concurring opinion. files a JACOBS, dissenting opinion. files a Judge, President SPAETH, J., dissenting opinion. files a not WATKINS, Judge, participate President did former this case. consideration or decision of PRICE, Judge, concurring: I think it neces- in this case. join majority opinion v. Bren- in Commonwealth out that sary, point nan, this court af- 358 A.2d Pa.Super. which involved the firmed curiam a lower court decision per conclusion. I believe opposite same issue and reached in Commonweath the lower court Klaric, (1975), a case which curiam, reached in and the result we likewise affirmed per issuing particular intentional avoidance of To the extent that the feared, permit which would could be fashioned a rule police procure outside warrant from an a search county, only upon appropriate but within the same unavailability demonstrating of an au- Commonwealth’s thority appropriate district. located in the *5 398 wise, I to correct. deem it appeal
the instant are contrary herein any out that our decision overrules point curiam per be drawn from the might implications Brennan, v. supra. affirmance Commonwealth JACOBS, dissenting: Judge, President opinion the basis of this Court’s I dissent on respectfully 459, A.2d 884 Pa.Super. 239 361 Myers, Commonwealth (1976). a of issued justice peace a Myers, County Chester residence in Lancaster located appellant’s warrant
search County police yield- The officers search Chester County. by was dog, and a stolen and copper appellant ed stolen wire prossed. were nolle charges subsequently arrested. These stolen However, the also revealed presence search Lancaster was parts, appellant charged automobile and court denied goods. with stolen lower County receiving evidence motion that suppress, to We view doctrine. plain was introduced under the properly trial, new VAN der Judge for a reversed remanded illegal the search was dissenting, and held VOORT was justice because the without peace issue the search We said: warrant. Rules Proce-
Rule 2001 of of Criminal be issued may dure provides “[a] or having jurisdiction person justice a general to be searched.” The rule is that place only magistrate, or alderman has peace, elected; he was locality over the in which Commonwealth therefore, Herb, 119, 211 Pa.Super. alderman, or magistrate, peace a places in the district persons issue a warrant to search was v. Myers, in which he elected. Commonwealth (footnote (1976) A.2d omitted). magis-
Although Myers involved find its search in county, trate of one for a another from insufficiently distinguishable and rationale language result. present opposite case permit *6 SPAETH, Judge, dissenting: demonstrate, (to put As the opinions other it to We should therefore construe achieve gently) obscure. notes, (as majority the best result. The best result concede) is to preclude shopping as the dissent seems to for a While the cases are compliant magistrate. around Commonwealth Myers, inconsistent, 239 Pa.Super. we did . say A.2d 884 “a to search persons places issue Id., district he was elected.” no this purpose limiting A.2d at 885. I see useful statement, reverse and and find it sufficient Rule 21 will hope award a new trial. the meantime be rewritten.
COMMONWEALTH of FORNATARO, Appellant. Steve Superior Court of
Argued Nov. 12, 1978. July Decided