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COMMONWEALTH PENNSYLVANIA v. JOHN W. BORECKY (05/02/80)

filed: May 2, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN W. BORECKY, APPELLANT



No. 1953 October Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas of Schuylkill County, Criminal Division, at No. 765-1 November Term, 1977.

COUNSEL

Frank R. Cori, Assistant Public Defender, Pottsville, for appellant.

Richard B. Russell, District Attorney, Pottsville, for Commonwealth, appellee.

Cercone, President Judge, and Watkins and Hoffman, JJ. Watkins, J., files a dissenting opinion.

Author: Cercone

[ 277 Pa. Super. Page 245]

Appellant was convicted by a judge sitting without a jury of possession of a controlled substance.*fn1 Post-verdict motions were denied and appellant was placed on probation for twelve months. This appeal followed.

The record discloses that on September 15, 1977, Trooper Stanley M. Leganza of the Pennsylvania State Police applied for and obtained a warrant authorizing a search of the premises occupied by appellant and another individual. Appellant

[ 277 Pa. Super. Page 246]

    contends*fn2 that the fruits of the search should be suppressed on the grounds that Trooper Leganza's affidavit in support of probable cause was based upon information derived from a prior illegal search. We are constrained to agree.

The affidavit in support of probable cause recited in pertinent part:

The affiant was in contact with a confidential informant who stated during the week of September 10th he learned two individuals who lived at R.D. # 1 Box 70 Auburn, Pa. in a grey farm house were in possession of quantities of marihuana. The affiant deems the informant reliable for the following reason. During the first week in September 1977 (between 10 September 1977 and 13 September 1977 at approximately 1500 hours) the informant personally entered the above dwelling house and observed in the attic, drying marihuana. The affiant personally searched the informant prior to entering the premises.

The informant returned to the affiant a quantity of the drying plant taken from the attic of the premises. The affiant conducted a field test of the plant and determined it to be marihuana. The affiant [sic] further stated the premises was occupied by Mryl H. Burkett. The marihuana obtained from the informant is personally in the hands of the affiant.

On 15 September 1977, the affiant conducted investigation and determined that the premises in question was owned by Edward REILLY, Pottsville, Pa. The owner was contacted and related he rented to John W. BORECKY and Mryl H. BURKETT the farm house and three outbuildings on the property in question.

On 15 September 1977 at approximately 1200 hours surveillance was conducted by ...


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