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COMMONWEALTH PENNSYLVANIA v. ROCCO BARBA (04/22/83)

filed: April 22, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
ROCCO BARBA, APPELLANT



No. 1862 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 79-6-1218, 1220, 1221, 1223, 1225, 1226.

COUNSEL

Joseph C. Santaguida, Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wieand, Beck and Hoffman, JJ. Hoffman, J., files a dissenting opinion.

Author: Wieand

[ 314 Pa. Super. Page 212]

Rocco Barba was tried non-jury and found guilty on six counts of theft by receiving stolen property.*fn1 On direct appeal, after post verdict motions were denied and sentences imposed, Barba contends (1) that the evidence was insufficient to support the guilty verdicts; (2) that the court erred in refusing to suppress evidence of the stolen goods found in appellant's possession; (3) that he was unfairly prejudiced by evidence of uncharged acts of misconduct; and (4) that his sentence was excessive and based on improper considerations. These contentions are lacking in merit; and, therefore, we affirm the judgments of sentence.

Appellant was arrested and charged with theft by receiving stolen property after police, in the execution of several search warrants, found four commercial and residential buildings filled with air conditioners, televisions, stereo sets, tires, appliances, clothing, jewelry and other assorted items of personal property. Some of the merchandise was specifically identified as stolen; other items were found from which identifying serial numbers had been removed. Police confiscated and removed four truck loads of goods.

The initial search warrant was issued for premises owned by appellant at 4324 Main Street, in the Manayunk section of Philadelphia. It was directed toward items taken in a burglary committed at 4321 Main Street approximately one

[ 314 Pa. Super. Page 213]

    month earlier. The affidavit of probable cause submitted by Detective Joseph Brignola contained the following:

On 2/1/79, a male known to me as Regis Pallotto came into the Major Investigation Unit headquarters, located at 39th & Lancaster Avenue, and stated that he had information concerning Burglars, and also about persons receiving stolen property. He stated that a male he knows as Fred Scavello 22 W/M who resides at 4355 Main St., has committed a Burglary on 12/31/78, at a residence located in the 4300 block of Main Street, Phila., Pa., at a house that has black steps, and taken in this burglary was a Sears black and white television, an old wall air conditioner, and a camera, and some jewelry. Mr. Pallotto stated that he saw this property in the possession of Scavello on the date of the Burglary, and then again on 2/1/79 inside the residence 4324 Main St., which he entered while escorted by a Rocco Barba. At this time Rocco Barba was trying to sell Pallotto a television. Mr. Pallotto states that he has known Mr. Barba for several years, and has on several occasions in the past sold stolen property to Mr. Barba, and has taken it inside 4324 Main St.

On 2/4/79 an investigation (was made) by the affiant Det. Joseph Brignola # 895 which revealed the following. A Mr. Earl Harvey 57 yrs W/M residing at 4321 Main St., was contacted and he stated that on 12/31/78 while he was out of the house for the evening, his residence was forcibly entered through the front door, and taken were a Sears black and white television, an old air conditioner, a camera, and some jewelry. Mr. Harvey also stated that his residence has black steps. Mr. Pallotto has stated that on 2/2/79, he saw the stolen Sears television inside 4324 Main St., Phila., Pa., and he also saw the air conditioner, inside 4324 Main St., and he knows these articles as the same ones that he saw on 12/31/78, the night of the Burglary at Mr. Harvey's house.

Due to the above related facts, it is felt that there is sufficient probable cause to obtain a Search Warrant for

[ 314 Pa. Super. Page 214]

    the residence located at 4324 Main St., Phila., Pa., so that the stolen articles may be recovered.

Before a search warrant can properly be issued upon probable cause, the affidavit must set forth the underlying circumstances from which the informer concluded that the items to be seized were where he said they were, and must also recite circumstances from which the issuing authority can determine whether the informant is reliable or his information credible. Aguilar v. Texas, 378 U.S. 108, 114-115, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, 729 (1964); Commonwealth v. Casuccio, 308 Pa. Super. 450, 455-56, 454 A.d 621, 624 (1982); Commonwealth v. Prosdocimo, 308 Pa. Super. 187, 196-97, 454 A.2d 84, 90 (1982). See: Commonwealth v. Davis, 466 Pa. 102, 110, 351 A.2d 642, 646 (1976); Commonwealth v. Matthews, 446 Pa. 65, 70, 285 A.2d 510, 512 (1971); Commonwealth v. Salvaggio, 307 Pa. Super. 385, 392, 453 A.2d 637, 640 (1982); Commonwealth v. Funke, 306 Pa. Super. 542, 547, 452 A.2d 857, 859 (1982). Appellant contends that the affidavit in this case failed to establish that the informant was reliable or his information credible. With respect to the reliability of an informant, this Court has "delineated four criteria to be considered by the issuing authority in his attempt to determine whether a substantial basis exists for crediting the informant's tip: '(1) Did the informant give prior reliable information? (2) Was the informant's story corroborated by any other sources? (3) Were the informant's statements a declaration against [penal] interest? (4) Does the defendant's reputation support the informant's tip?'" Commonwealth v. Herron, 243 Pa. Super. 319, 334, 365 A.2d 871, 878 (1976), quoting Commonwealth v. Ambers, 225 Pa. Super. 381, 386, 310 A.2d 347, 350 (1973). See also: Commonwealth v. Prosdocimo, supra, 308 Pa. Superior at 198, 454 A.2d at 89; Commonwealth v. Salvaggio, supra, 307 Pa. Superior at 393, 453 A.2d at 641; Commonwealth v. Mazzochetti, 299 Pa. Super. 447, 455, 445 A.2d 1214, 1218 (1982); In re Burton, 259 Pa. Super. 20, 23, 393 A.2d 696, 697 (1978). However, there is no requirement that each criterion be met

[ 314 Pa. Super. Page 215]

    in order to support a finding of reliability. Commonwealth v. Prosdocimo, supra, 308 Pa. Superior at 198, 454 A.2d at 89; Commonwealth v. Salvaggio, supra, 307 Pa. Superior at 394, 453 A.2d at 641; Commonwealth v. Mazzochetti, supra, 299 Pa. Superior Ct. at 455, 445 A.2d at 1218; Commonwealth v. Marzel, 291 Pa. Super. 553, 560, 436 A.2d 639, 642 (1981); In re Burton, supra, 259 Pa. Superior at 23, 393 A.2d at 697; Commonwealth v. Herron, supra, 243 Pa. Superior at 334, 365 A.2d at 878.

In the instant case, a named informant described goods stolen during a recent burglary. He also gave the date and location of the crime and said that he had seen the stolen goods delivered to appellant by the burglar, whom he identified. An independent police inquiry confirmed the occurrence of the burglary and disclosed a theft of goods corresponding to those described by the informant. This was sufficient to support a finding of probable cause. The informant's tip had been corroborated by an independent police investigation. See: Commonwealth v. Salvaggio, supra; Commonwealth v. Frazier, 269 Pa. Super. 527, 410 A.2d 826 (1979); Commonwealth v. Whitehouse, 222 Pa. Super. 127, 292 A.2d 469 (1972). See also: Commonwealth v. Hunt, 256 Pa. Super. 140, 389 A.2d 640 (1978). The fact that the informant was named and had been an eyewitness to the delivery of the stolen goods to appellant added additional reliability to the information given to the issuing authority. Commonwealth v. Frazier, supra, 269 Pa. Superior at 534-535, 410 A.2d at 830. See: Commonwealth v. Stokes, 480 Pa. 38, 44-45, 389 A.2d 74, 78 (1978); Commonwealth v. Brown, 298 Pa. Super. 11, 20, 444 A.2d 149, 154 (1982); Commonwealth v. Urbina, 290 Pa. Super. 117, 122-123, 434 A.2d 157, 159-160 (1981). See generally: Commonwealth v. Mamon, 449 Pa. 249, 297 A.2d 471 (1972).

It was not essential to the establishment of probable cause that the affiant police officer allege that appellant knew the goods to have been stolen. In the context of search warrants, probable cause exists where there is a ...


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