*1 would be to appellant to bid an amount neces- require protect interests, sary subsequent plaintiff’s execution is contra to the intent of the of Pennsylvania Rules Civil Procedure pertaining proceedings. execution of the order the lower court is

Accordingly, reversed Sheriff L. Eugene Coon is ordered to remit the sum hereby of to appellant. $85.25 J.,

HOFFMAN, did not participate the consideration or decision this case. Lynn ECKERT,

In the Interest Michael a minor and Zachery Eckert, S. minor. LYNN,

Appeal Zachery Eckert, of Michael a minor and S.

a minor.* Superior Pennsylvania. Court of

Submitted Dec. 1977.

Decided Dec. * Supreme opinion EDITOR’S Pennsylva NOTE: The of the Court Welfare, nia Department Tunnicliff Commonwealth of Public published (393 1201) in the advance sheets at this citation A.2d rehearing withdrawn pending. from the bound volume because *2 Jr., Defender, Reading, E. Public Kerper, Robert Assistant for appellant, Lynn Michael Eckert. Levan, Defender, W. D.

Ralph Reading, Assistant Public Zachery for appellant, S. Eckert. Morrissey, ap-

J. Michael District Attorney, pellee. WATKINS, Judge, JACOBS,

Before former President HOFFMAN, CERCONE, PRICE, der VAN VOORT and SPAETH, JJ.

JACOBS, Judge: President

This is taken from an order of the below appeal court refusing suppress adjudicating evidence and the minor appellants delinquent. The issue we must decide is whether *3 the in lower court erred determining that sufficient probable cause was to the magistrate justify the issuance of the initial warrant to search the premises.1 For the reasons, error, following we find no and therefore affirm the order entered below. morning in the of

Early September between 6:00 m., and a. 6:30 several shooting incidents occurred in the of the 100 of vicinity block Penn Street in Reading. Two bullets, automobiles and a bakery by truck were struck and a shop machine in the area fired upon. was

On same m., the between 1:00 and a. day, 7:00 a cafe located north of immediately the area of the was shootings into, beer, broken and several of whiskey, bottles cases of cigarettes, cans soup removed, of and snack foods were taken along money vending from amusement ma- chines open. that were forced Appellants also contend that the second search warrant lacked cause, unlawful, that their arrests that the were statements given by involuntary, them after that arrest were the evidence against adjudication them was insufficient the delin to sustain of quency. allegations We have reviewed the record find these meritless. of Young Lorrin Read- morning,

Later same Detective investigate was sent to cafe Department Police ing shooting of been informed having after also burglary, of the cafe and with the owners speaking incidents. After items, Officer the stolen inventory of a verbal obtaining police a of where shootings, to the area Young went underway. investigation was shots came from After the determined of Penn side of the 100 block (odd-numbered) the north row, were Street, all houses they searched Street-, which for 141 Penn up, except vacant and boarded Young While Officer family. the Eckert occupied by escape on fire policemen and other were spent observed several they caliber of 141 Penn the second-floor roof filed an a search Young subsequently rifle, .22 caliber home and seizure a .22 caliber the Eckert shells, bullets, and sneakers with tread spent .22 caliber roof of 139 Penn Street. similar to seen prints issued, yielded arid the search caliber The warrant was bullets, During shells. rifle, and .22 caliber .22 caliber within the house similar search, observed items Young Cafe, Ward stolen from the Sixth items described as items. to seize secured a warrant these accompanied her sons then Mrs. Eckert and two admitting Hall, boy where each statement City gave shootings. and the burglary the cafe participation processed juvenile probation were juveniles by then *4 office, in the court adjudicated delinquent subsequently to evidence was denied. suppress below after their motion This followed. appeal to initial warrant search their contend that the

Appellants cause because residence was issued without does not connect the information the warrant application to 141 Penn presented Street. to be searched as premises describes the application

follows: (3) Three story red brick located at Known as Reading, Penn. St. Berks Co. Penna. The items to be searched for and seized are described as

.22 Rifle (Make unknown) Cal. any Cal. Bullets. used) Also any Spent (empty, cartridges, or .22 cal. be in may or on the roof of this building. Any sneakers which have tred similar to the sneak- er, prints seen by officers near spent found cartridges the roof of Berks, St.

And, finally, probable cause section sets forth the follow- facts: ing

Investigation revealed a hit sniper shot at and several autos and houses in the area of the 100 blk. Penn. St. Investigation checking led of the vacant buildings in the 100 blk. Penn. St. Officers observed Cal shell casings on the roof of the only building in the row of homes where the shots are believed to have originated from.

Investigation was limited to the 100 Blk. Penn. due St. fact, to the all were hit entering leaving autos while or Penn St. at Bridge Reading. second and Penn St.

Appellants argue, agrees, the dissent that the any fails connect of the information searched, with the to be because at no point is row of “only occupied building homes” identified as 141 Penn A reading common sense the application leads us to a different conclusion.

We agree language that the in the appli- cation to the effect were found 139 Penn Street must have been a misstatement.2 disagree, however, We with the legal effect thereof.

A necessary prerequisite to the issuance of a valid search warrant presentation to a by affiant of sufficient to persuade information a reasonable person that probable cause search exists. The seminal spent cartridges being 2. No mention of roof of 139 found appears suppression transcript. *5 166 331, 437 D'Angelo,

case in this area is Commonwealth v. (1970), 263 A.2d 441 wherein the Court invalidated search based the affiant’s misstatement upon robber. From already defendant been identified cases, D'Angelo only applies has evolved that later the rule Common- misstatements of material facts. deliberate 224, (1974).3 879 Jones, 229 323 A.2d Pa.Super. wealth v. is not whether misstate materiality The test of but rather whether strengthens application, ment v. Yuck is essential thereto. Commonwealth misstatement 225, 24, (1978). This 19, 390 A.2d 227 Pa.Super. 251 nevage, and then deleting test the misstatement performed by remains sufficient cause determining probable whether to issue a valid warrant. Commonwealth Tucker, 594, (1978); 384 938 Pa.Super. 252 A.2d Common (1976). Scavincky, Pa.Super. wealth v. 240 case at results in the standards to the bar Applying these following facts: been magistrate having a) at several homes and shooting was directed Sniper 100 of Penn in the area of the block

automobiles Street; to the 100 block of

b) investigation Police was limited all target Penn after the determined that police damaged facing were side automobiles block; side of the 100 odd-numbered 1Q0 c) buildings the vacant The searched caliber shell and saw block building in the only row; seeking a warrant to search 141

d) Young Officer Penn Street. facts, intelligence these of reasonable person

From number, an odd deduce that since 141is understanding could the row of bearing that number were within have to be must also homes searched. 3. material as one without which cause Jones defines a fact Pa.Super. at 323 not A.2d search would exist. realized that as the searched the houses on the vacant *6 block, shell they observed Street, been only which must have occupied row, in the a subsequently sought home warrant to search 141. nothing

The that in argues dissent the warrant appli 141 only occupied cation describes as the house the block. Common no provides sense the connection. It takes stretch of the or twisted construction of affidavit to imagination dwelling, realize that 141 been an unoccupied had Indeed, to it. sought would not have a warrant search a to row premises search the vacant in the was not See, e. v. g., Coyle, Commonwealth 415 required. Thomas, United States (1964); F.Supp. 216 942 (N.D.Cal.1963). As consequence, been seeking only have a warrant to search the occupied row, in Penn building which was 141 precisely we hold According, court below committed no error in refusing suppress the fruits of the search of the pursuant seized a valid warrant. refusing

Order the motion to suppress adjudicating appellants delinquent affirmed.

SPAETH, J., files dissenting opinion. WATKINS, HOFFMAN, J., former Judge, President did not in participate the consideration or decision of this case.

SPAETH, Judge, dissenting: Two search warrants are first involved. Because the probable cause, warrant was issued without order lower court adjudicating should be delinquent reversed and new hearing directed.

The first warrant described the as premises to be searched (3) “Three red brick story building located at and known 141 Penn. Berks The Co. Penna.” lower cause, court, that the warrant issued holding in stated that the issuance of support

it affidavit warrant] [the .22 shell caliber cas- officers observed stated that which was the only on the roof of ings in the 100 block. in the row of houses lower court at Slip Opinion of been an inadvertence. must have This statement for as follows: items to be searched described the affidavit unknown) any .22 Cal. bullets. (Make Cal. Rifle used) cartridges, cal. or any Spent (empty, Also building. this or on the roof of may be similar to the which have tred sneakers Any [sic] *7 near sneaker, by seen officers prints Berks, St, Reading, roof of 139 Penn found added.) (Emphasis following in statement also included the

The affidavit of probable cause: on the roof .22 Cal. shell

Officers observed row of homes where only occupied from. originated believed to have shots are only occupied However, in the affidavit “the nowhere being row of homes” identified Street. point contest

It be may —that assumed— to search 139 cause the affidavit stated however, typographical not have been “139”, could reason to believe that given A magistrate “141”. error for has reason to believe that found at “139” no may bullets be I majority As be found at “141”. understand they may . have real- must . . says it opinion, “[t]he for “141”. issue a warrant being ized” asked to he if surprised I he should be slip at-. Majority opinion did; I wouldn’t have. delin- adjudicating appellants of the lower court order hearing directed. new should be reversed

quent