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COMMONWEALTH PENNSYLVANIA v. THOMAS EDWARD KLIMKOWICZ (05/18/84)

submitted: May 18, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS EDWARD KLIMKOWICZ, APPELLANT



NO. 01409 Pittsburgh, 1983, Appeal from the Order October 27, 1983, in the Court of Common Pleas of Armstrong County, Criminal, No. 1982-0097 and 1982-0105.

COUNSEL

Edward T. Rowe, Jr., Lower Burrell, for appellant.

George R. Kepple, District Attorney, Kittanning, for Commonwealth, appellee.

McEwen, Olszewski and Roberts, JJ.

Author: Mcewen

[ 331 Pa. Super. Page 78]

Appellant, Thomas Edward Klimkowicz, was convicted of burglary and receiving stolen goods following a jury trial. After his motions for a new trial and in arrest of judgment were dismissed, he was sentenced to a term of imprisonment of three to ten years. We affirm.

Appellant has undertaken this appeal from the judgment of sentence and asserts (a) that the Commonwealth did not present sufficient evidence to sustain the convictions; (b) that a new trial should have been granted because of after-discovered evidence; (c) that the lower court erred in refusing to suppress certain evidence seized pursuant to the search warrant because the information from the informant was stale; and (d) that the lower court erred in refusing to suppress certain evidence seized pursuant to the search warrant because the affidavit of probable cause consisted of hearsay upon hearsay.

Initially, we will review appellant's claims concerning the sufficiency of the search warrant. Appellant asserts that the search warrant was invalid because the information received from the informant constituted double hearsay. To determine whether an informer's tip establishes probable cause for the issuance of a search warrant, the United States Supreme Court has adopted a "totality of the circumstances" approach. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).*fn1 The Gates decision indicated that the "totality of the circumstances" standard

[ 331 Pa. Super. Page 79]

    is flexible and not hypertechnical. The issuing magistrate must consider "all of the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of the persons supplying hearsay information." Gates, 103 S.Ct. at 2332. In reviewing the magistrate's determination, it is the duty of this Court to determine whether there is substantial evidence in the record supporting the magistrate's decision to issue the warrant.

In the instant case, the affiant police officer averred that there was sufficient probable cause to issue the search warrant based on the following facts and circumstances set forth in the affidavit:

Sometime between July 15th and July 31st, David Opalka was at the informant's residence and told the informant that he and Thomas Edward Klimkowicz had 'hit' the residences of Richard Walker, Kevin Kronen, and Joseph Patrick. This was after the informant had told Opalka that he and Klimkowicz were suspected by the State Police of these burglaries, along with a burglary at Jamesway. A few days later, also at the informant's residence, David Opalka and Thomas Edward Klimkowicz told the informant that they still had the guns that they had stolen from the Walker, Kronen, and Patrick residences, and that they were keeping them at Klimkowicz's trailer, located at Rosenberger Road, Valley Township, Armstrong County. Opalka and Klimkowicz stated at this time that they were going to keep the guns there because the were too 'hot' to sell.

Richard Walker, Kevin Kronen, and Joseph Patrick have reported to the state police that their residences had been burglarized, and that ...


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