Appeal from order of Superior Court, April T., 1970, Nos. 257 and 258, affirming judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, March T., 1968, Nos. 242 and 337, in case of Commonwealth of Pennsylvania v. Murrell L. Bedford, alias Murrill Bedford, alias Merle Bedford and Mary Hughes.
Byrd R. Brown, for appellants.
Robert L. Campbell, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Manderino concurs in the result. Concurring Opinion by Mr. Justice Pomeroy.
Appellants, Murrell Bedford and Mary Hughes, were arrested on December 18, 1967, and charged with violating The Drug, Device and Cosmetic Act (possession of narcotics).*fn1 These charges resulted from a search, conducted pursuant to a warrant, of appellant Bedford's apartment (with appellant Hughes on the premises) which produced narcotics. After an evidentiary hearing, a timely filed pre-trial motion to suppress evidence was denied. Thereafter on May 28, 1969, in a jury trial, appellants were adjudged guilty of possession of narcotics. Post-trial motions were denied. Appellant Hughes was sentenced to a three-year term of imprisonment. Appellant Bedford, being sentenced
as a recidivist, was ordered imprisoned for ten to twenty years. The Superior Court affirmed in an opinion-less per curiam order. This Court granted allocatur, and we now reverse and remand for a new trial.
Appellants, on this appeal, contend that probable cause was not established before the magistrate to sustain the issuance of the search warrant.*fn2 With this contention we agree.
As the Commonwealth concedes, the written affidavit*fn3 submitted to the magistrate was insufficient to establish the existence of probable cause. No underlying circumstances were contained therein which established the credibility and trustworthiness of the informant's personal knowledge (that narcotics were in
Bedford's apartment) or the reliability of the informer himself. Accordingly, the "two-prong" test of Aguilar v. Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 1514 (1964), was not met.*fn4 See Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584 (1969).
Despite the obvious insufficiency of the written affidavit, the Commonwealth seeks to sustain the warrant on the basis of oral sworn testimony purportedly conveyed to the magistrate prior to the issuance of ...