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COMMONWEALTH v. BURKE (06/24/75)

decided: June 24, 1975.

COMMONWEALTH
v.
BURKE, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, Nov. T., 1971, No. 759, in case of Commonwealth of Pennsylvania v. Lee Myers Burke.

COUNSEL

Harry L. Green, Assistant Public Defender, for appellant.

Stewart J. Greenleaf, Assistant District Attorney, with him J. David Bean, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Cercone, J. Jacobs, J., dissents. Dissenting Opinion by Price, J.

Author: Cercone

[ 235 Pa. Super. Page 38]

Appellant, Lee M. Burke, was arrested on October 22, 1971, and charged with violating The Drug, Device

[ 235 Pa. Super. Page 39]

    and Cosmetic Act.*fn1 This charge arose from a search, pursuant to a warrant, of appellant's motel room which produced narcotics. Appellant's pre-trial application to suppress evidence was denied; and on July 27, 1973, following a three-day jury trial, appellant was adjudged guilty of possession of narcotics. From the lower court's imposition of a sentence appellant appeals to this court.

On this appeal appellant assigns numerous alleged errors relating to the lawfulness of the verdict. In view of our disposition, however, we find it necessary to only consider two of appellant's contentions.

Appellant first contends that the verdict was based upon evidence obtained under an illegal search warrant and, therefore, should have been suppressed. Specifically, it is the appellant's contention that the "two-pronged" test of Aguilar v. Texas, 378 U.S. 108 (1964), as explicated in Spinelli v. United States, 393 U.S. 410 (1969), was not satisfied. We disagree. The affidavit to the search warrant stated that on October 12, 1971, a confidential informant advised one of the affiant officers that a negro male known as "Curt" was pushing heroin from the Black Horse Motel located in Plymouth Township. The informant further stated that he thought the room number at the motel was fourteen, and that "Curt" was living at the motel with a white female. The informant also told the affiant the license number of "Curt's" automobile. Furthermore, the informant stated that he had previously purchased heroin from "Curt" at the motel and at a bar in Norristown "in the preceding 2 or 3 months prior to October 12, 1971." The affiant officer stated that this informant had furnished reliable information in the past; and had previously provided information which had been instrumental in establishing the probable cause

[ 235 Pa. Super. Page 40]

    necessary for the arrest of at least three other individuals.

Surveillance conducted by the affiant on October 13, 14 and 15 revealed that "Curt" was in fact living at room number fourteen of the motel, and a check of the license number of the vehicle "Curt" was driving established that the vehicle was registered to Lee Burke, the appellant (Appellant does not dispute that he is also known as "Curt"). On October 22, 1971, surveillance by the other affiant officer disclosed that a known user and pusher of heroin was frequenting the appellant's motel room. Numerous other unidentified people visited the appellant's room on this date and confined their visits to short periods of time. All of the foregoing information appeared in the written affidavit. Additional sworn oral testimony, however, supplemented the affidavit. The affiants orally advised the issuing authority that they observed other named drug users visit the appellant's room. The issuing authority was also advised that the motel manager had telephoned one of the affiants and ...


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