The opinion
BROSKY, Judge,
dissenting:
I respectfully dissent.
In Commonwealth v. Melton, 402 Pa. 628, 629 , 168 A.2d 328, 329 (1961), our Supreme Court said:
It is only where the question involved is purely one of law that the Commonwealth may appeal from an adverse ruling in a criminal case.... Where . . . the reason for the action of the trial court, whereof the Commonwealth complains, is based upon a mixture of law and fact, the Commonwealth is without any right to appeal therefrom.
(Emphasis added.) See also: Commonwealth v. Ray, 448 Pa. 307, 312 , 292 A.2d 410, 413 (1977); Commonwealth v. Iacavazzi, 297 Pa.Super. 200, 204 , 443 A.2d 795, 797 (1981); Commonwealth v. Kunkel, 254 Pa.Super. 5 , 385 A.2d 496 (1979); Commonwealth v. DeFelice, 248 Pa.Super. 516, 522 , 375 A.2d 360, 363 (1977). I would hold that the Commonwealth cannot appeal from the order of the trial court.
*94 The suppression court judge, Judge Maurice Louik, correctly stated in his opinion for the court:
It is within the discretion of the trial Court whether or not to allow amendments under Rule 150 of the Pa.R. Crim.P. Commonwealth v. Lardo, 240 Pa.Super. 107 , 368 A.2d 324, 329 (1976). Since this Court finds that the search warrant was improperly issued, i.e., it was postdated, the Commonwealth will not be permitted to amend the warrant.
The issuing magistrate, Howard D. Lindberg, appears to have purposely postdated the search warrant. Mr. Lind-berg testified that he was told the police intended to execute the warrant at 8:00 A.M. on September 6. He then assigned a time of issuance that was identical to the intended time of the search.
It was not contended by the Commonwealth that the magistrate mistakenly wrote 8:00 A.M. September 6, 1980 instead of 2:00 P.M. September 5, 1980. It appears that the time of 8:00 A.M. September 6, 1980 was purposely and deliberately inserted instead of the actual time when the warrant was issued.
The Commonwealth finds itself on the horns of a dilemma. If the warrant was issued on September 5, 1980, at 2:00 P.M., it was postdated and improper. If the warrant was issued and intended to be issued at 8:00 A.M. September 6, 1980, it was improperly executed prior to the time of issuance. Commonwealth v. Swint, 256 Pa.Super. 169 , 389 A.2d 654 (1978), is inapplicable to the instant case; since this Court finds that the warrant was deliberately postdated rather than misdated. Also, Commonwealth v. Chinea, 246 Pa.Super. 494 , 371 A.2d 944 (1974), is inapplicable, since the postdating of a search warrant cannot be equated with “a minor typographical error.”
(Trial Court Opinion Pages 1-2) I agree with Judge Louik’s opinion. Therefore, I cannot agree with the majority that an appeal by the Commonwealth is permitted.
*95 Clearly, if this were an error which I could reasonably find involved the unintentional misdating of a search warrant, Commonwealth v. Swint, 256 Pa.Super. 169 , 389 A.2d 654 (1978), or “a minor typographical error,” Commonwealth v. Chinea, 246 Pa.Super. 494 , 371 A.2d 944 (1974), I would agree that the Commonwealth could appeal. Under those circumstances, I would hold that the decision of the trial court was “purely one of law.” However, as Judge Louik indicates in his opinion, the decision of the suppression court required a factual determination as to whether the search warrant was or was not deliberately postdated. The decision depended in its entirety upon the suppression court’s appraisal of the credibility of the testimony of the magistrate. The court found the magistrate’s testimony incredible. Certainly, this is a factual decision. 1 Accordingly, I would hold that the reason for the suppression court’s holding was “based upon a mixture of law and fact, ...” I would quash the Commonwealth’s appeal.
. The majority’s opinion supports this contention. The majority specifically decided that a finding of fact by the lower court was incorrect. Instead, the majority chooses to act as a factfinder and states that it agrees with the Commonwealth that the evidence should have required a different decision:
The suppression court disbelieved the Magistrate’s version that the error was the product of “an honest mistake.” Instead, the court found “that the warrant was deliberately post-dated rather than misdated.” Consequently, all evidence seized pursuant to the invalidly issued warrant was suppressed. This appeal followed.
The Commonwealth asserts that the court abused its discretion in concluding from the evidence adduced at the suppression hearing that the date which the Magistrate noted on the search warrant was a purposeful act. Furthermore, the Commonwealth contends that appellee suffered no violation of his Fourth Amendment rights as a result of the misdating. We agree.
(Page 540.)
The majority contends further that the suppression court’s decision was improper. Even if I were to agree that an appeal could be brought by the Commonwealth, the standard of review, as the majority states, is “abuse of discretion.” I would not hold that the trial court abused its discretion in finding that the magistrate misdated the warrant deliberately. I note that the majority fails to specifically find that the suppression court abused its discretion. This court cannot reverse a decision, herein, simply because we disagree with the suppression court’s finding, rather, we must determine that that court abused its discretion before we can reverse its decision.