Vincent J. Ziccardi, Defender, Jonathan Miller, Chief, Appeals Div., Defender Assn. of Philadelphia, John W. Packel, Philadelphia, for appellant.
Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., Maxine J. Stotland, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., and Pomeroy, J., dissent. Nix, J., concurs in the result.
Appellant, William Muscheck, was convicted of illegally possessing narcotic drugs (marijuana) and was sentenced to a term of three to twenty-three months imprisonment to be served on weekends. Prior to trial, the appellant made a timely application to suppress evidence seized during a search of his apartment. Relief was denied, and the evidence seized formed the basis for appellant's conviction. Post-verdict motions were denied. On appeal, the Superior Court affirmed the conviction. Commonwealth v. Muscheck, 222 Pa. Super. 348, 294 A.2d 809 (1972). Judge Hoffman filed a dissenting opinion in which Judge Spaulding joined. 222 Pa. Super. at 350, 294 A.2d at 810. We granted appellant's petition for allowance of appeal.
Appellant contends that this evidence, a quantity of marijuana, was the fruit of an illegal search and should have been suppressed. He argues that the search warrant did not authorize the search of his apartment, but rather "authorized the search of another apartment entirely different from the one alleged in the application for said warrant to contain contraband."
The application for the search warrant requested approval to search premises located at "1633 Locust Street, 2nd. fl. front." In support of the application, the affidavit of the police officer alleged certain underlying circumstances concerning (1) the reliability of the informant and (2) the reliability of the manner by which the informant obtained his information. See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). This affidavit was the sole basis
upon which the authorization to search was granted. The relevant portions of the application read as follows:
"NAME OF OWNER, OCCUPANT OF PREMISES AND/OR PERSON TO BE SEARCHED:
William Barton, residence 1008 S. 49th Street and others on premises.
ADDRESS (STREET AND NO.) AND DESCRIPTION OF PREMISES AND/OR ...