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COMMONWEALTH PENNSYLVANIA v. CHARLES TOLBERT (02/06/81)

decided: February 6, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
CHARLES TOLBERT, APPELLANT



No. 411 JANUARY TERM, 1978, Appeal from the Judgment of the Superior Court (October Term, 1976, No. 2093) affirming the judgment of sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County, Pennsylvania, at No. 1577 February Term, 1976.

COUNSEL

John W. Packel, Chief, Appeals Div., Leonard Sosnov, Asst. Defender, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Ellen Mattleman, Philadelphia, for appellee.

O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Kauffman, J., filed a dissenting opinion in which Larsen, J., joins.

Author: Flaherty

[ 492 Pa. Page 578]

OPINION OF THE COURT

Appellant, Charles Tolbert, was arrested and charged with knowing and intentional possession with intent to deliver heroin and marijuana. A search, pursuant to warrant, of 619 N. 12th Street in Philadelphia on December 2, 1975, recovered over a hundred glassine packets of heroin and marijuana. A pre-trial motion to suppress this evidence was filed and denied. Thereafter, appellant was tried before a judge, sitting without a jury, and adjudged guilty of the charges. The challenged evidence was introduced against the appellant at trial. Post trial motions were denied and a sentence of five years probation imposed. The conviction was affirmed by the Superior Court per curiam on May 5, 1978. On October 6, 1978, this Court granted the appellant's petition for allowance of appeal. Under attack is the validity of the probable cause affidavit prepared by Officer Piree supporting the application for the search warrant, said affidavit here reproduced, in part:

On 12-1-75 received information from a reliable informant who has in the past month given reliable information which has resulted in 2 separate arrests with narcotics being confiscated in each arrest.

[Here, there appears a detailed recounting of the informant's witnessing of a narcotics transaction at 619 N. 12th St. No date of this observation is given.]

As a result of this information, I conducted a surveillance of this loc. on 12-2-75 between the hours of 8:am [sic] and 8:50 am during this time, I did observe 3 unknown n/m/s

[ 492 Pa. Page 579]

    knock on the front 1st floor window of 619 N. 12th st and then be admitted inside through the front dor [sic] of 619 N. 12th. Each of these males remained inside for approx. 5 minutes and then departed. As a result of this information and of the activity during the surveillance, I do believe that the above named [suspect] is engaged in the business of storing and selling heroin from this loc. and request approval of this search and seizure warrant.

The affidavit establishes that a reliable informant observed one narcotics transaction at the apartment on some unspecified date in the past and told Officer Piree about it on December 1. There is no statement of when the informant allegedly made this observation. The only time frame is that the informant "in the past month" (November, as the ...


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