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COMMONWEALTH PENNSYLVANIA v. THOMAS J. SCHILLING (03/18/83)

filed: March 18, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS J. SCHILLING, APPELLANT



No. 1986 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Schuylkill County, at No. 278, and 278 of 1979.

COUNSEL

Ronald R. Pellish, Pottsville, for appellant.

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

Cavanaugh, DiSalle*fn* and Watkins, JJ.

Author: Watkins

[ 312 Pa. Super. Page 46]

Appellant, Thomas J. Schilling was convicted by a jury of three violations of the Controlled Substance, Drug, Device and Cosmetic Act.*fn1 At Information No. 179 of 1979 on the charge of Delivery of a Controlled Substance, he was sentenced to pay the costs of prosecution, to undergo partial confinement in Schuykill County Prison for not less than three nor more than twelve months, and to pay a fine of $2,000.00.*fn2 Sentence on Information No. 278, which included charges of Possession and Possession with Intent to Deliver, was suspended. Appellant now appeals his judgments of sentence on multiple grounds. We affirm.

Appellant argued for suppression of approximately 90 grams of marijuana which were seized by state troopers from appellant's car pursuant to a search warrant on April 11, 1979. His Suppression Motion was denied. Trooper Peter Zuber received information on April 10, 1979, from two fifteen year olds that on the day before, they had

[ 312 Pa. Super. Page 47]

    purchased a quantity of marijuana from appellant Thomas J. Schilling, also known as "Squeaky".*fn3 Armed with the information, the trooper presented an application for a Search Warrant for appellant's car to the District Justice. The probable cause section reads:

That on 10 Apr 79 Todd M. SLAKOPER, of 266 W. Phillips St. Coaldale, Pa. informed the affiant that he was with Timothy S. KEER, on 9 Apr 79 in the above mentioned vehicle in Coaldale Boro., and did see Thomas "Squeaky" SCHILLING take marijuana from the glove compartment of this vehicle and did sell same to Timothy for $35.00. That on 10 Apr 79, Timothy S. KEER, 41 High St., Coaldale, Pa. did inform the affiant that he got into the vehicle mentioned above on 9 Apr 79 in Coaldale, Pa. sometime about 8:00 P.M. and did in fact see SCHILLING take from the glove compartment some marijuana which he sold to him for $35.00 and that he seen him put some more marijuana back into this glove compartment. And that the affiant believes this information from both persons to be reliable, true and honest and correct. And that the affiant (sic) that there is still some more marijuana and drugs in this vehicle.

The District Justice noted in granting the application that the warrant should be served no later than 10:00 P.M. on April 11, 1979. The date of application is specified as April 11, 1979. However, the District Justice neglected to enter the date and time of issuance of the warrant.

Appellant argues that the evidence should have been suppressed because the omission of the date and time of issuance rendered it illegally drawn, because the affidavit lacked sufficient underlying circumstances to amount to probable cause for ...


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