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COMMONWEALTH PENNSYLVANIA v. JOHN MICHAEL KARNS (10/11/89)

submitted: October 11, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN MICHAEL KARNS, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Venango County, Criminal Division, No. SD 137 - 1987.

COUNSEL

F. Walter Bloom, III, Oil City, for appellant.

William G. Martin, Jr., Dist. Atty., Franklin, for Com., appellee.

Wieand, Tamilia and Hester, JJ.

Author: Tamilia

[ 389 Pa. Super. Page 60]

On February 17, 1987, appellant John Michael Karns was charged with manufacture, delivery or possession of marijuana with the intent to manufacture or deliver.*fn1 Earlier

[ 389 Pa. Super. Page 61]

    that day, state police, executing a search warrant, entered a dwelling in Venango County, conducted a search and seized approximately 208 marijuana plants growing in soil in the basement of the dwelling, as well as various paraphernalia and other items of evidence. After a non-jury trial on May 26, 1988, appellant was found guilty and sentenced to between 20 and 48 months imprisonment and fined $5,000. Post-verdict motions having been denied, appellant now appeals the judgment of sentence.

On appeal, appellant first argues the affidavit of probable cause of Trooper G.F. Kuffer does not, on its face, establish probable cause for the issuance of the search warrant. In determining probable cause, Pennsylvania has adopted the "totality of the circumstances" test set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and followed in Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). The test now utilized for analyzing warrants is as follows:

The task of the issuing magistrate is simply to make a practical, commonsense 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 that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for . . . conclud[ing] that probable cause existed."

Commonwealth v. Melilli, 521 Pa. 405, 418-419, 555 A.2d 1254, 1261 (1989) (citation omitted), quoting Gates, supra at 237-38, 103 S.Ct. at 2332.

Without directly arguing as much, appellant would have us apply the pre- Gray two-prong test, independently analyzing both the veracity and basis of knowledge of the confidential informants who supplied Trooper Kuffer with the information upon which he based his affidavit of probable cause. This we cannot do. ...


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