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COMMONWEALTH v. DIAL (03/23/71)

decided: March 23, 1971.

COMMONWEALTH
v.
DIAL, APPELLANTS



Appeal from judgments of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Sept. T., 1968, No. 173, Oct. T., 1968, No. 235 and Nov. T., 1968, No. 303, in case of Commonwealth of Pennsylvania v. Charles Dial.

COUNSEL

Daniel M. Berger, with him Berger & Kapetan, for appellant.

Robert L. Campbell, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Jacobs, J. Concurring and Dissenting Opinion by Hoffman, J.

Author: Jacobs

[ 218 Pa. Super. Page 250]

This appeal raises the constitutionality of three searches and seizures, the fruits of which were introduced against appellant at his trial before a judge without a jury.

After indictments were returned against appellant, and before trial, he moved to suppress the evidence seized. The evidence was suppressed in one case, but the motion was refused in three cases which for convenience we will call No. 173, No. 235, and No. 303. No. 173 charged appellant with unlawful possession of narcotic drugs on June 28, 1968. No. 235 charged him with unlawful possession of narcotic drugs on July 11, 1968, and, in a second count, with maliciously loitering and prowling on the same date. In No. 303 he was charged with unlawful possession of narcotic drugs on August 2, 1968. In each case the evidence seized consisted of narcotics, together with a hypodermic needle in one case.

The appellant was tried before the court without a jury and found guilty on all counts except malicious loitering and prowling at No. 235. Appellant moved for a new trial and in arrest of judgment raising the

[ 218 Pa. Super. Page 251]

    admissibility of the evidence seized. His motions were refused and he was sentenced as follows: On No. 173 he received five to twenty years; on No. 303 he received five to twenty years to run concurrently with the sentence on No. 173. Sentence was suspended on No. 235.

Nos. 173 and 303 involve searches conducted with warrants while No. 235 involves a search incident to an arrest. We will first discuss the cases in which warrants were used.

On No. 173 the police searched appellant's apartment. The lower court found that the police, armed with a warrant, knocked on appellant's door, announced that they were police and had a search warrant, heard running inside, and broke down the door. They found appellant hiding in the cellar. A search of the apartment produced the narcotics. Although appellant claims that he didn't run until the police broke down his door, the lower court was the trier of facts and its findings are supported by the testimony. See Commonwealth v. Tabb, 433 Pa. 204, 249 A.2d 546 (1969).

The affidavit for the search warrant was made by a police officer in the following language: "Information received this date that subject Charles Dial of 2007 Webster Ave is selling cocaine and heroin on Centre Ave at Arthur Sts. and that he is packaging same in his residence. Subject Charles Dial is known to the narcotic squad as a dealer in narcotics having been arrested by Federal Agents three weeks ago for sale of heroin. Informant has supplied information in the past leading to the arrest of Meryl Bedford and Mary Hughes at 226 Dinwiddie St. and a large seizure of heroin and cocaine also the arrest of Robert Monroe at 2040 Forbes St. and a large seizure of marihuana. Affiant observed this subject on this date transacting business with known drug addicts on Centre Ave. in vicinity of Arthur St. in company with members of

[ 218 Pa. Super. Page 252]

    narcotic squad, after this survelliance this warrant was obtained."

Appellant argues that the search warrant does not contain sufficient underlying facts to permit the magistrate to issue the search warrant and further that the execution of the warrant was unreasonable. We disagree on both points.

". . . [I]t is now well established that a magistrate may not constitutionally issue a search warrant until he is furnished with information sufficient to persuade a reasonable man that probable cause for the search exists. Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964); Commonwealth v. Alvarez, 208 Pa. Superior Ct. 371, 222 A.2d 406 (1966) . . . . And his decision must be based solely on the information brought to his attention. Aguilar v. Texas, supra." Commonwealth v. D'Angelo, 437 Pa. 331, 336-37, 263 A.2d 441, 444 (1970).

An affidavit for a search warrant may be based on hearsay information. In order for the hearsay to constitute probable cause, however, it must satisfy the two-prong test set forth in Aguilar v. Texas, supra: "[T]he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, . . . was 'credible' or his information 'reliable.'" 378 U.S. at 114 (Emphasis added.)

The affidavit clearly indicates the circumstances showing why affiant relied on the informant. Those circumstances were the prior arrests resulting in large seizures of illegal narcotics and would justify an independent finding of reliability.

The second requirement of Aguilar, that the magistrate must be informed of some of the ...


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