Appeal from judgment of sentence of Court of Common Pleas of Delaware County, Sept. T., 1970, No. 368, in case of Commonwealth of Pennsylvania v. Robert Falk.
David E. Auerbach, Assistant Public Defender, for appellant.
Anna Iwachiw Vadino and Ralph B. D'Iorio, Assistant District Attorneys, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Wright, P. J., and Watkins, J., would affirm the judgment below.
[ 221 Pa. Super. Page 45]
This is an appeal from appellant's conviction and sentence for violation of the Drug, Device and Cosmetic Act, Act of September 26, 1961, P. L. 1664, § 1, 35 P.S. 780-1 et seq.
Appellant contends that the drugs seized in his apartment and introduced as evidence against him at his trial were the fruit of an unconstitutional search and seizure. Specifically, appellant alleges that the search warrant which purportedly gave the police authority to make the search failed to establish probable cause for the magistrate to authorize a search. Appellant argues, therefore, that the search was violative of the standards set forth in Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United States, 393 U.S. 410 (1969); and United States v. Harris, 403 U.S. 573 (1971).
The search warrant upon which the magistrate found probable cause to authorize a search contained the following information:
"(1) From Officer Ward, Haverford Township Police, information was received by the affiant that a boy by the name of Bob was selling and using a narcotic referred to as 'Speed' and that he lived in the apartments on East Eagle Road;
"(2) Affiant talked to Officer Chatfield, Haverford Township Police, assigned to the walking beat in this area, and he supplied the fact that Robert Falk did live at 34 East Eagle Road; that at one time Falk worked at Musselman's Pharmacy in Philadelphia but had been fired; that he had information that this subject and two girls in Apartment C-16 have been having drug parties in the apartments and on February 22nd were reported to have LSD and Speed; and Falk is friendly with the man in Apartment A-5, Essay, who is reported to be using dugs also.
[ 221 Pa. Super. Page 46]
"(3) On February 23rd, Officer Ward gave affiant a white pill which Ward had received from a source of information who stated she had received this from Falk. This pill was analyzed at the Crime Lab of the District Attorney's Office and was found to be dextroamphetamine sulfate.
"(4) Musselman's Pharmacy was contacted and the store manager, Mr. Feldman, stated that Falk had represented himself to them as a registered pharmacist. After working for two weeks and receiving no replies from Falk's references, they checked with the Philadelphia College of ...