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COMMONWEALTH PENNSYLVANIA v. CARL FRANZ OGBORNE (05/01/89)

filed: May 1, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
CARL FRANZ OGBORNE, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Delaware County, Criminal at No. 283-87.

COUNSEL

F. Kirk Adams, Media, for appellant.

Vram Nedurian, Jr., Assistant District Attorney, Newtown Square, for Com., appellee.

Cavanaugh, Tamilia and Popovich, JJ. Tamilia, J., files a dissenting opinion.

Author: Popovich

[ 384 Pa. Super. Page 605]

This is an appeal from the judgment of sentence of May 13, 1988.*fn1 Following a non-jury trial on April 3, 1987, appellant was adjudicated guilty of possession of a controlled substance and possession with intent to deliver a controlled substance. He was found not guilty of possession

[ 384 Pa. Super. Page 606]

    of drug paraphernalia.*fn2 For the reasons herein set forth, we reverse.

The pertinent facts are as follows: Detective Greenwalt of the Delaware County C.I.D. returned a telephone call from a confidential informant in the early evening of January 15, 1987. Over the past year the informant provided police with reliable information concerning drug activities in Delaware County. The informant told Detective Greenwalt that appellant would arrive later that evening in a black Dodge automobile at the 100 block of Saude Avenue, Tinicum Township. He further informed police that, based on personal knowledge, he knew the appellant would have in his possession approximately 10 bundles of the drug Phencyclidine (hereinafter P.C.P.). Detective Greenwalt testified that, after receiving the information from the confidential informant, he did not request a search warrant or arrest warrant because he did not think there was sufficient probable cause to obtain one. (N.T. Suppression Hearing 3/30/87, p. 33)

Detective Greenwalt knew appellant was involved in the distribution of P.C.P. in 1981 and 1985. He proceeded to call the Tinicum Township police and confirm that appellant and his wife resided at 115 Saude Avenue, and that a black Dodge was frequently parked in front of that property.

A police surveillance of the 100 block was set up that night. At approximately 11:20 p.m. the police observed a black Dodge enter Saude Avenue from Second Street. When the vehicle reached 115 Saude Avenue it turned into a private driveway. At this time Detective Greenwalt identified appellant as the driver of the car.

An unmarked police car operated by Detective Greenwalt immediately pulled into the driveway behind appellant's vehicle. Detective Greenwalt then activated the emergency red flashing lights mounted on the dashboard of the vehicle. ...


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