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COMMONWEALTH v. DIAL (12/20/71)

decided: December 20, 1971.

COMMONWEALTH
v.
DIAL, APPELLANT



Appeal from order of Superior Court, April T., 1970, No. 153, affirming order and judgment 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 L. Duggan, District Attorney, for Commonwealth, appellee.

Jones, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones concurs in the result. Mr. Chief Justice Bell and Mr. Justice Barbieri took no part in the consideration or decision of this case.

Author: O'brien

[ 445 Pa. Page 252]

Appellant, Charles Dial, was indicted on three separate bills charging: unlawful possession of drugs on June 28, 1968 (No. 173), unlawful possession of drugs and malicious loitering and prowling on July 11, 1968 (No. 235), and unlawful possession of drugs on August 2, 1968 (No. 303).

[ 445 Pa. Page 253]

Following a non-jury trial, appellant was found guilty on all counts, save for the loitering and prowling count contained in Bill No. 235. Motions for a new trial and in arrest of judgment were denied, and appellant was sentenced to concurrent five-to-twenty-year prison terms on Nos. 173 and 303. Sentence on No. 235 was suspended. The Superior Court reversed the judgment of sentence at No. 303, and affirmed the other two. Judge Hoffman filed a concurring and dissenting opinion to the effect that he would also reverse the judgment of sentence at No. 235. We then granted allocatur.

Bill No. 173

With respect to No. 173, police, armed with a search warrant, searched appellant's apartment and seized a quantity of narcotic drugs. The affidavit in support of the issuance of 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 narcotic squad, after this survelliance [sic] this warrant was obtained."

[ 445 Pa. Page 254]

Appellant argues that this affidavit did not set forth underlying circumstances sufficient to permit the magistrate to issue the search warrant. Appellant emphasizes that the phrase "transacting business" does not necessarily mean that appellant was dealing in narcotics. However, the affiant testified that the expression "transacting business" meant "dealing in dope," and a common sense reading of the affidavit supports this testimony. Consequently, there can be no doubt that this affidavit easily satisfied the requirements of Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584 (1969), and Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509 (1964).

Appellant also argues that in executing the warrant at No. 173, the failure of the officers to give appellant reasonable opportunity to admit them before the officers broke down the door invalidated the search. However, in Commonwealth v. Newman, 429 Pa. 441, 444, 240 A.2d 795, 797 (1968), we recognized that the procedure set forth in 18 USC ยง 3109 was "reasonable" in terms of the Constitution's protection against "unreasonable" searches. This statute states: "The officer may break open any outer or inner door or window of a house, or any part ...


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