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COMMONWEALTH PENNSYLVANIA v. HARVEY ENSMINGER (02/10/84)

filed: February 10, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
HARVEY ENSMINGER, APPELLANT



No. 36 Harrisburg 1982, Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Division, of Lebanon County at No. 432, 1980.

COUNSEL

Spero T. Lappas, Harrisburg, for appellant.

William L. Thurston, Assistant District Attorney, Lebanon, for Commonwealth, appellee.

Wickersham, Beck and Montemuro, JJ.

Author: Wickersham

[ 325 Pa. Super. Page 378]

On August 13, 1980, appellant Harvey Ensminger was arrested and charged with possession of marijuana with intent to deliver. The arrest followed a search of the Ensminger residence conducted pursuant to a duly issued search warrant. Appellant filed pre-trial motions seeking, inter alia, suppression of the fruits of the search on the ground that the search warrant was improperly issued. On February 26, 1981, after a hearing, appellant's pre-trial motions were denied. On March 11, 1981, the Honorable John Walter, sitting without a jury, found appellant guilty as charged. Post-trial motions were filed and denied. Appellant

[ 325 Pa. Super. Page 379]

    was sentenced on December 1, 1981. This appeal timely followed.

Appellant avers that the search warrant was issued on the basis of an affidavit of probable cause that relied on information supplied by a confidential informant. Said affidavit of probable cause reads, in pertinent part, as follows:

During the month[s] of July and August the affiant conducted a drug investigation in the Northern Lebanon County area. As a result of this investigation names of local drug traffic[k]ers were learned from contacts made on the street while operating in an undercover capacity. The following names were learned as local traffic[k]ers in marihuana, cocaine and pills. Phillip "Lippy" Ensminger and Harvey ENSMINGER, who reside at a gray stone house located along the North side of Route 22 at RD# 3 Jonestown Pa.

During the month[s] of July and August 1980, the affiant was in contact with an informant which he feels reliable. The informant has personal contact with the ENSMINGERS at their residence. The informant has purchased marihuana and cocaine from "Lippy" and Harvey ENSMINGER at their residence during this investigation period.

Investigation by the affiant revealed that "Lippy" and Harvey ENSMINGER do in fact reside at RD# 3 Box 7320 Jonestown, Pa. in a gray stone house located on the North side of old Route 22, Jonestown, Pa.

During the third week in July 1980 the informant revealed that a large drug buy was to be made in the Northern [Lebanon] County area involving Harvey ENSMINGER, "Lippy" ENSMINGER, Jeff STUPPI, a white male named Tiny and a white male named Squiggy. A large quantity of marihuana and cocaine was involved. The informant further related the ENSMINGERS were to end up with a large quan[t]ity of the drugs at their residence in RD# 3 Jonestown, Pa.

On 11 August 1980 the informant was in personal contact with the affiant during ...


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