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COMMONWEALTH PENNSYLVANIA v. ANTHONY TURNER (02/13/81)

filed: February 13, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY TURNER, APPELLANT



No. 2364 Oct. Term, 1979, APPEAL FROM JUDGMENT OF SENTENCE, NOVEMBER 9, 1978, OF THE HONORABLE BERNARD SNYDER OF THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, TRIAL DIVISION, CRIMINAL SECTION, JANUARY SESSIONS, 1978, NO. 1287.

COUNSEL

Peter A. Levin, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Brosky, Hoffman and Cirillo, JJ.*fn*

Author: Cirillo

[ 284 Pa. Super. Page 396]

This is an appeal from an order of the Court of Common Pleas of Philadelphia County sentencing the appellant to five years alcoholic probation. On January 4, 1978, acting pursuant to a search warrant signed by Judge Conroy, the police searched the appellant's apartment and found articles which had apparently been taken from a neighborhood bar during a burglary. Appellant was then arrested and

[ 284 Pa. Super. Page 397]

    charged with burglary, theft by unlawful taking, and theft by receiving stolen property.

On April 28, 1978, a hearing was conducted before the Honorable Bernard Snyder on appellant's motion to suppress the items uncovered in the search. The motion was denied. On July 20, 1978, appellant was tried before Judge Snyder and found guilty of theft by receiving stolen property. Post verdict motions were argued and appellant's motions for a new trial and in arrest of judgment were denied on November 9, 1978. No timely appeal was filed. Appellant subsequently filed a Post Conviction Hearing Act petition seeking the right to appeal his judgment of sentence nunc pro tunc. The petition was granted, and this appeal nunc pro tunc followed.

Three issues are presented on appeal: (1) whether the affidavit for the search warrant sufficiently established probable cause for the issuance of the warrant; (2) whether the search warrant was properly executed by police; and (3) whether an incriminating statement of the appellant was illegally obtained.*fn1

Appellant contends that the search warrant was issued on less than probable cause because the affidavit on which it was granted failed to set forth any basis both for crediting the informant and for establishing the underlying circumstances from which he received this information.

The probable cause section of the affidavit is as follows:*fn2

On Thursday, December 22, 1977, the Sanctuary Bar, 4134 Walnut Street, reported a burglary by an unknown person(s). Missing was ...


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