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COMMONWEALTH PENNSYLVANIA v. CARL MACOLINO (12/07/84)

filed: December 7, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
CARL MACOLINO, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. GAE BERNADETTE MACOLINO, APPELLANT



No. 668 PHL 81, Appeal from the Judgment of Sentence of the Court of Common Pleas of Delaware County, Criminal Division, at No. 4595 of 1979. No. 669 PHL 81, Appeal from the Judgment of Sentence of the Court of Common Pleas of Delaware County, Criminal Division, at No. 4594 of 1979.

COUNSEL

John R. Carroll, Philadelphia, for appellant.

Vram Nedurian, Jr., Assistant District Attorney, Newton Square, for Commonwealth, appellee.

Beck, Watkins and Hoffman, JJ.

Author: Hoffman

[ 336 Pa. Super. Page 388]

Appellants contend that the affidavit employed in the instant case was insufficient to show probable cause for the issuance of the search warrant. We disagree and, accordingly, affirm the judgment of sentence.

[ 336 Pa. Super. Page 389]

On October 27, 1979, the Pennsylvania State Police, while executing a search warrant, discovered four bags of cocaine and related drug materials in appellants' home at 432 Holmes Road, Morton, Pennsylvania. Appellants' pre-trial motions to suppress the evidence seized during the search were denied and, following a non-jury trial, appellant Carl Macolino was found guilty of possession of a controlled substance with intent to deliver and criminal conspiracy, while appellant Gae Macolino was found guilty only of criminal conspiracy. Post-trial motions were denied, and Carl Macolino was sentenced to a term of imprisonment of eleven-and-a-half-to-twenty-three months on the possession offense and a consecutive term of three years probation on the conspiracy charge. Gae Macolino was sentenced to two years probation. On appeal, this Court reversed the judgments of sentence and ordered appellants discharged on the ground that the evidence was insufficient to support their convictions. Commonwealth v. Macolino, 302 Pa. Superior Ct. 96, 448 A.2d 543 (1982). Upon the Commonwealth's appeal of the reversal of Carl Macolino's judgment of sentence for possession,*fn1 the Supreme Court found the evidence sufficient, reversed our order and remanded for disposition of appellants' remaining contentions. Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983). The case is presently before us on that remand.

"[The issuing magistrate's] determination of probable cause should be paid great deference by reviewing courts." Commonwealth v. Frye, 242 Pa. Superior Ct. 144, 148, 363 A.2d 1201, 1203 (1976). "[P]robable cause exists when the facts and circumstances set forth in the affidavit are sufficient to warrant a man of reasonable caution in the belief that the contraband to be seized was in the specified place." Id. "[O]nly the probability, and not a prima facie showing of criminal activity is the standard of probable cause". Id. This Court has recently followed the United States Supreme Court in its abandonment of the "two-pronged

[ 336 Pa. Super. Page 390]

    test" for evaluating the sufficiency of search warrant affidavits established in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and its decision to "reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations." Commonwealth v. Price, 318 Pa. Superior Ct. 240, 245, 464 A.2d 1320, 1323 (1983), quoting Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). Under this totality of the circumstances test,

[t]he task of the issuing magistrate is simply to make a practical common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability ...


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