Com. v. Ehredt

• Decision Date: 25 July 1978
• Citation: 255 Pa.Super. 84,386 A.2d 147
• Parties: COMMONWEALTH of Pennsylvania v. Ted Steven EHREDT, Appellant.
• Court: Pennsylvania Superior Court

Page 147

386 A.2d 147

255 Pa.Super. 84

COMMONWEALTH of Pennsylvania v. Ted Steven EHREDT, Appellant.

Superior Court of Pennsylvania.

Argued April 14, 1976.

Decided April 28, 1978.

Petition for Allowance of Appeal Granted July 25, 1978.

Ralph T. Forr, Jr., Altoona, with him Donald E. Speice, Asst. Public Defender, Hollidaysburg, for appellant.

Thomas G. Peoples, Jr., Asst. Dist. Atty., Hollidaysburg, submitted a brief for Commonwealth, appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

PER CURIAM:

The six Judges who decided this appeal being equally divided, the judgment of sentence is affirmed.

JACOBS, President Judge, files an opinion in support of affirmance in which CERCONE and VAN der VOORT, JJ., join.

SPAETH, J., files a dissenting opinion and HOFFMAN, J., joins in Part I of SPAETH's, J., opinion.

PRICE, J., dissents and would discharge because appellant was not timely tried under Pa.R.Crim.P. 1100.

WATKINS, former President Judge, did not participate in the consideration or decision of this case.

OPINION IN SUPPORT OF AFFIRMANCE

JACOBS, President Judge:

On July 9, 1975, appellant Ted Steven Ehredt was convicted by a jury of receiving stolen property. ¹ Motions for a new trial and in arrest of judgment were denied by the court below, and a sentence of six to twenty-two months imprisonment was imposed. Appellant questions the propriety of his conviction on this direct appeal, raising several allegations of error. ² I would affirm the judgment of sentence.

Initially, appellant contends that the lower court erred in granting the Commonwealth's petition for extension of time under Pa.R.Crim.P. 1100(c). The facts relating to this claim are as follows: A criminal complaint was filed against appellant on January 9, 1975. Under the mandate of Pa.R.Crim.P. 1100(a)(2), ³ the Commonwealth was required to bring appellant to trial within 180 days. Trial was scheduled to commence on July 1, 1975, but was rescheduled on that date for July 9, without objection on anybody's part, because the courtroom to which it was assigned was being used. On July 7, 1975, one day before the 180 day period for commencement of trial was to expire, the Commonwealth petitioned for an extension of time. On July 8, 1975, appellant filed a petition to dismiss the charge with prejudice pursuant to Pa.R.Crim.P. 1100(f). ⁴ Argument on both petitions was held on July 9, 1975, after which the lower court granted the Commonwealth's petition to extend and denied appellant's petition to dismiss. Trial commenced on that date.

Pa.R.Crim.P. 1100(c) provides, in pertinent part, as follows:

At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial. . . . Such application shall be granted only if trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.

Here, the Commonwealth's petition seeking a time extension was filed "prior to the expiration of the period for commencement of trial." Our inquiry does not end there, however; the timeliness of a petition to extend is not the sole measure of its validity. The question we still must decide is whether the Commonwealth showed that trial could not "be commenced within the prescribed period despite due diligence." I conclude that it did and, therefore, that the petition to extend was properly granted.

As noted above, the case would have gone to trial on July 1, 1975, but for the unavailability of the courtroom to which it was assigned. Trial was rescheduled for July 9, one day beyond the mandatory 180 day period. At the hearing held on its petition to extend, the Commonwealth did not contend that courtrooms were unavailable during the eight-day delay. ⁵ See Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976); Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976). Rather, the Commonwealth predicated its request for a one-day extension solely upon a claim that "(s)everal Commonwealth witnesses indicated that although they were available on July 1, 1975, they would not be available on July 2 or 3 and that in fact the earliest day when the Commonwealth's witnesses would all again be available would be July 9, 1975." N. T. Extension Hearing at 2.

Although appellant argues to the contrary, this is not a situation where it simply was inconvenient for the Commonwealth to have the case tried within the required time. The Commonwealth sought an extension because its witnesses would not be available until July 9. This court has recognized that the unavailability of a Commonwealth witness may be a proper basis upon which to grant an extension of time. Commonwealth v. Brown, --- Pa.Super. ---, 381 A.2d 961. Cf. Commonwealth v. Jenkins, 248 Pa.Super. 300, 375 A.2d 107 (1977); Commonwealth v. Mancuso, 247 Pa.Super. 245, 372 A.2d 444 (1977). I perceive no reason to hold otherwise in the instant case and, therefore, find no merit to appellant's contention that the lower court improperly granted the Commonwealth's petition to extend.

Appellant also contends that his timely application to suppress evidence seized during a search of his apartment should have been granted below. He claims that the search warrant involved here was issued without probable cause and that insufficient facts were presented to justify a nighttime search. The court below ruled otherwise, and I conclude correctly so.

The warrant named "Ted Ehredt" as the occupant and specified "second floor apartment rear of 213 4th Street" as the premises to be searched. The affidavit of probable cause read as follows:

"Jeffrey Wilbur, 15, 427 7th Ave., admitted to stealing said property and then later storing it in the second floor property of 213 4th Str., Altoona, Penna.

"REASON FOR SEARCHING AT NIGHTTIME:

WILBUR WAS ARRESTED IN THE ABOVE APARTMENT AND AFTER THE ARREST APD RECEIVED INFORMATION THAT THE ABOVE MENTIONED PROPERTY WAS GOING TO BE MOVED."

At the outset, we recognize that an affidavit of probable cause may be based on hearsay information and need not reflect the direct personal observations of the affiant. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Commonwealth v. Greco, 465 Pa. 400, 350 A.2d 826 (1976). The affidavit, however, still must contain "sufficient information to justify the conclusion that a crime has been committed and that evidence or fruits of the crime may be found at the place to be searched." Commonwealth v. Heyward, 248 Pa.Super. 465, ----, 375 A.2d 191, 192 (1977). In Aguilar, the United States Supreme Court laid down the now familiar "two-pronged" test for issuing a search warrant when probable cause is based upon information supplied the affiant by an informant. This test requires that the affidavit set forth sufficient underlying circumstances to conclude that the objects to be seized will be where the informant claims and some of the circumstances justifying the affiant's belief in the reliability of the informant.

In the instant case, there has been no contention that the actual burglar's statement as to where he stored the stolen items does not satisfy the Aguilar requirements. Rather, appellant argues only that the information set forth in the affidavit was "stale" and, therefore, could not supply the probable cause necessary for the issuance of the warrant. I disagree.

A prime element in the concept of probable cause is the time of the occurrence of the facts relied upon. Thus, it is settled law that "stale" information will not support a finding of present probable cause. As this Court stated in Commonwealth v. Hagen, 240 Pa.Super. 444, 449, 368 A.2d 318, 321 (1976).

"Our decisional law has long adhered to the principle that probable cause for issuance of a search warrant must be established at the time that the warrant is issued, Commonwealth v. Conner, 452 Pa. 333, 305 A.2d 341 (1973); Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973), and that such decision must be based on facts which are closely related in time to the date of the warrant, Commonwealth v. Suppa, 223 Pa.Super. 513, 302 A.2d 357 (1973). Evidence of criminal activity at some prior time will not support a finding of probable cause on the date that the warrant issues unless it is also shown that criminal activity continued up to or about that time. Commonwealth v. Eazer, 455 Pa. 320, 312 A.2d 398 (1973); Commonwealth v. Simmons, supra; Commonwealth v. Shaw, 444 Pa. 110, 281 A.2d 897 (1971); Commonwealth v. Novak, 233 Pa.Super. 236, 335 A.2d 773 (1975)."

Here, the burglaries are alleged to have occurred on October 10, November 7 and 10, and December 24, and 27, 1974. The burglar was arrested on January 9, 1975, at about 10:00 P.M., and he admitted that he had stored the stolen items in appellant's apartment; the police applied for a search warrant for that apartment almost immediately thereafter. ⁶ The search was made within 3 hours of the arrest.

The guidelines for reviewing cases such as this were provided in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), where the Supreme Court stated:

". . . when a magistrate has found probable cause, the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a commonsense, manner. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." Id. at 109, 85 S.Ct. at 746. (citation omitted).

Although the burglar did not specify the date that he stored the goods in appellant's apartment, there simply is nothing here to indicate that those...