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COMMONWEALTH v. JACKSON (04/03/74)

decided: April 3, 1974.

COMMONWEALTH
v.
JACKSON, APPELLANT



Appeals from judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, March T., 1972, Nos. 291-292, in case of Commonwealth of Pennsylvania v. Thomas L. Jackson.

COUNSEL

John W. Packel, Assistant Defender, with him Vincent J. Ziccardi, Defender, for appellant.

James Garrett, Assistant District Attorney, with him Milton M. Stein and James T. Ranney, Assistant District Attorneys, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Cercone, J. Hoffman, J., concurs in the result. Spaulding, J., did not participate in the consideration or decision of this case. Concurring Opinion by Jacobs, J. Concurring Opinion by Spaeth, J.

Author: Cercone

[ 227 Pa. Super. Page 4]

This is an appeal by Thomas L. Jackson from his conviction, after trial without jury, of the crimes of burglary and attempted burglary. The appellant urges this Court to grant him a new trial on the basis of alleged errors made at the suppression hearing.*fn1 For the reasons enunciated below we deny appellant's motion on the burglary conviction, but grant it as to the attempted burglary conviction.

The facts of the case, simply stated, are these. Some time between December 24, 1971 and January 2, 1972, a Mr. Alexander Johnson told the police that he had observed the appellant break into a truck parked on Bellvue Street in Philadelphia and remove a tool box. This informant knew the appellant on sight from seeing him in that neighborhood where the informant operated a store. The owner of the auto mechanic's tools also reported that the theft occurred on December 24, 1971. The appellant lived near the scene of the crime and had previously been arrested for burglary. On the basis of this information the magistrate issued a warrant to search the appellant's residence on January 2, 1972.

When the police searched the appellant's room that same day, they failed to discover any tools other than an open-ended wrench of the type that can be found in

[ 227 Pa. Super. Page 5]

    most homes. The search of the appellant's dresser drawers which revealed the wrench also led to the discovery of a collection of proof-set coins, packaged in a distinctive manner, and a gold pocket watch, items which the officer knew to be the fruits of a previously reported burglary of the home of a Mr. Prather. Although the officer did not seize the wrench, he did seize the coins and the watch along with some stolen identification cards. This evidence of the gold watch and coins formed the basis for the appellant's conviction at trial in the instant case for the burglary of the residence of a Mr. Carl Prather.

While the appellant was in custody for the Prather burglary, a Mrs. Shirley Jackson chose his picture from an array of fifteen to twenty-five photographs shown to her at the police station as being that of the man she had confronted briefly after he broke in her door on the night of January 5, 1972. Although the record does not indicate, apparently, the charge of burglary of the Prather residence and the charge of attempted burglary of the Jackson residence were consolidated for trial. On Mrs. Jackson's testimony, her photographic identification and evidence that a burglary had occurred that same evening in that same building, the appellant was convicted of the crime of attempted burglary of the Jackson residence.

The appellant first argues that the evidence produced by the search of his premises must be suppressed either because the warrant was fatally defective, or because the search extended to an area where the articles sought could not reasonably be expected to be found. We disagree with both conclusions.

The probable cause section of the search warrant reads as follows: "Above-named subject was seen by Alexander Johnson, 58 N/N Res. 2112 Bellvue Street, breaking into a 67 Ford truck, yellow, Philadelphia license 016843 and removing a tool box from this vehicle

[ 227 Pa. Super. Page 6]

    and walk toward 21st and Bellvue Street. Informant knows this male on sight from seeing him in the neighborhood where the informant operates a store. The tools which were taken were reported stolen to the police by Logan Walter, 53 N/N 2118 Bellvue Street who had parked the truck in front of 2111 Bellvue Street. The subject's home is about a block and 1/2 from where the theft occurred. The subject has prior arrest for burglary."

Although the information concerning the date of the alleged crime and the date of the issuance of the warrant are not included in the probable cause section, they are set forth clearly and specifically on the face of the affidavit supporting the warrant. The affidavit states that the crime of burglary was committed on December 24, 1971 and that the warrant was issued on January 2, 1972.

The purpose of the affidavit in support of a warrant is to enable a magistrate to determine whether probable cause for the commission of a crime exists. The requisite information to be set forth in an affidavit for issuance of a warrant are:

(1) Name and address of accused,

(2) Nature of crime,

(3) Time the crime is alleged to have been committed,

(4) The type of information, concerning the crime, upon which the ...


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