Appeal from order of Superior Court, Oct. T., 1971, No. 263, affirming the judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1970, No. 1240, in case of Commonwealth of Pennsylvania v. William Hall.
John W. Packel, Assistant Defender, with him Michael L. Levy and Jonathan Miller, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
Milton M. Stein, Assistant District Attorney, with him James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Edwin D. Wolf submitted a brief for amicus curiae.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Concurring Opinion by Mr. Justice Nix. Mr. Chief Justice Jones and Mr. Justice Pomeroy join in this concurring opinion.
Appellant William Hall was tried non-jury in the Common Pleas Court of Philadelphia and convicted of possession and use of narcotic drugs. Post-trial motions were denied and appellant was sentenced to a term of imprisonment of not less than forty days nor more than twenty-three months. The Superior Court affirmed the judgment of sentence, Commonwealth v. Hall, 219 Pa. Superior Ct. 760, 281 A.2d 345 (1971), and we granted allocatur. For reasons which follow, we remand for another suppression hearing.
Prior to trial appellant made a timely motion to suppress certain evidence in accordance with Pa. R. Crim. P. 323(b). After an evidentiary hearing the motion to suppress was denied. It is the scope and result of that suppression hearing which forms the primary basis for this appeal.*fn1
The suppression hearing focused upon the validity of a search warrant issued June 14, 1970, and executed at 1:00 A.M., June 15, 1970. The execution of the warrant resulted in the police uncovering a small quantity of narcotic drugs in appellant's possession. The Commonwealth readily admits that the possession of these drugs was indispensable in obtaining appellant's conviction. In applying for the warrant the police officer-affiant alleged that at a specified apartment narcotic drugs in significant quantities were being sold. The source of the information, according to the affidavit, was an informant, whose identity the police have not disclosed. See McCray v. Illinois, 386 U.S. 300, 87 S. Ct. 1056 (1967); Commonwealth v. Crawley, 209 Pa. Superior Ct. 70, 223 A.2d 885 (1966).
To establish the reliability of the information received from the unnamed informer, 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), the affidavit alleged that in the past two years the police had received information from that informant in at least five cases, three resulting in convictions and two still pending. Based on the assertions contained in the affidavit, including the apparent establishment of the informant's reliability, the magistrate determined that controlling probable cause standards had been satisfied and issued the warrant. Appellant concedes that the language on the face of the warrant recites probable cause.
During cross-examination of the police officer-affiant at the suppression hearing defense counsel asked for the names of those individuals previously arrested as a result of information received from the unnamed ...