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decided: June 29, 1977.


No. 734 October Term, 1976, No. 735 October Term, 1976, Appeal from the Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Bucks County, Nos. 16, 17, and 17-1 of 1975.


George E. Goldstein, Philadelphia, for appellants.

Stephen B. Harris, First Assistant District Attorney, Warrington, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion in which Cercone and Spaeth, JJ., join. Spaeth, J., files a dissenting opinion in which Hoffman and Cercone, JJ., join.

Author: Watkins

[ 248 Pa. Super. Page 11]

This appeal arises from the appellants' convictions of various offenses under The Controlled Substance, Drug, Device and Cosmetic Act of April 14, 1972, P.L. 233, and conspiracy, after a non-jury trial. Appellant Burch was sentenced on each of two indictments to imprisonment of one to eleven months, the sentences to run concurrently, and to pay the costs of prosecution on one indictment and half the cost of prosecution on the indictment jointly filed against appellant Riberdy. Appellant Riberdy was placed

[ 248 Pa. Super. Page 12]

    on probation for one year and ordered to pay half the costs of prosecution on the charge in which she was jointly indicted with appellant Burch.

A search was made of Burch's residence pursuant to a search warrant and substantial amounts of controlled substances were seized. Riberdy was present at the residence when the search warrant was executed. The appellants contend that the evidence seized should have been suppressed as there was no probable cause for the issuance of a search warrant. An affidavit was taken by an undercover state police officer which formed the basis of the issuance of the warrant. The affidavit alleged that the officer had purchased marijuana in the past from a Carlos Guerrero, and that he made arrangements to purchase 20 pounds of marijuana from Guerrero. The affidavit further alleged that Guerrero and the officer went to a car wash to meet Guerrero's supplier (who turned out to be Burch) and that when Guerrero met the individual at the car wash they left in a car and about 15 minutes later returned. Guerrero and Burch were subsequently arrested and controlled substances were found in their possession. The affidavit also stated that Guerrero told the affiant that his supplier had just received 200 pounds of marijuana and described the appellant's house and gave his address.

A two-pronged test has been established for determining probable cause to issue a search warrant. First, the affidavit must set forth the underlying circumstances from which the informer concludes that the items to be seized are at the place to be searched. Second, the affidavit must set forth the underlying circumstances whereby the affiant has concluded that the informer is credible and his information reliable. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Commonwealth v. Early, 236 Pa. Super. 60, 64, 345 A.2d 197, 200 (1975). We are satisfied that the affidavit taken by the police officer meets the test. The first prong of the test is satisfied as Guerrero took the officer to meet his supplier. He told the officer that his supplier had just received a 200-pound shipment of marijuana.

[ 248 Pa. Super. Page 13]

Guerrero had told the police officer, whom he did not know was an undercover agent, that he was going to meet his supplier and when Guerrero returned from the short trip that he took with Burch, they were arrested for possession of drugs. Burch lived a short distance from the car wash to which Guerrero had originally driven the officer to pick up the drugs, and it was reasonable to conclude that the shipment of the marijuana was at his home. The second prong of the test was also met as the affiant had purchased drugs from Guerrero in the past and could rely on his statement that his supplier had just received a large shipment of marijuana. We are also guided by the rule that, in judging probable cause, the issuing magistrate is not to be confined by restrictions on the use of his common sense, and his determination of probable cause should be given great deference by the reviewing court. Commonwealth v. Williams, 236 Pa. Super. 184, 345 A.2d 267 (1975).

Appellants contend that the affidavit was misleading as the police knew that, when Burch left the car wash with Guerrero to obtain marijuana for the undercover officer, he did not return to his home. We have carefully reviewed the affidavit and find that it does not appear to be misleading. Even though Burch did not return to his home with Guerrero to obtain marijuana which was to be sold to the officer, it is logical that he would have kept a large shipment of marijuana at his home. Accordingly, we find that the search warrant was properly issued upon probable cause.

Appellants also contend that the trial counsel (who was not the same lawyer as counsel on appeal) was ineffective as he did not raise the issue at trial that the affidavit requested a night search. The issue of ineffective assistance of counsel is properly raised on appeal where counsel on appeal did not represent the appellant at trial, and the grounds appear of record. Commonwealth v. Graves, 238 Pa. Super. 452, 356 A.2d 813 (1976). In this case, the search warrant was issued at 20 minutes after nine at night. Since drugs may be readily moved, a night search was warranted. Counsel does not have to raise every possible objection

[ 248 Pa. Super. Page 14]

    available at trial, and he is not ineffective where he does not raise issues at trial that are without merit. Commonwealth v. Betts, 234 Pa. Super. 642, 341 A.2d 912 (1975).

Appellant Burch contends that the evidence seized from him when he was arrested at the car wash must be suppressed as his arrest was without probable cause. This conclusion is without merit. When Guerrero returned with the appellant in the appellant's automobile, both he and appellant were told they were under arrest, and both took flight. At that time, the police had probable cause to believe that the appellant was involved in the sale of the marijuana with Guerrero and the warrantless arrest was proper. The evidence established that the appellant was more than merely present at the scene of the crime.

Appellants next contend that trial counsel was ineffective as there was a conflict of interest in his representation of appellant Burch and appellant Riberdy at trial. The question of a conflict of interest was discussed by the trial court and both appellants agreed to have the same attorney represent them. Dual representation does not in and of itself raise a conflict of interest. In order to vitiate the proceedings, a conflict must appear from the facts of the proceedings as they exist on the record. Commonwealth v. Smith, 228 Pa. Super. 256, 323 A.2d 838 (1974). We do not find that the record manifests a conflict of interest.

Judgments of sentence affirmed.

HOFFMAN, Judge, dissenting:

I join in Judge Spaeth's dissenting opinion, but believe that an additional reason mandates vacating the judgment of sentence and ordering a new trial.

[ 248 Pa. Super. Page 15]

Appellants*fn1 challenge the validity of the warrant issued on October 15, 1974, authorizing a search of appellant-Burch's home in Doylestown Township, Bucks County. The Majority concludes that the face of the warrant states adequate probable cause. See Rule 2003(a), Pa.R.Crim.P., 19 P.S.Appendix; Commonwealth v. Williams, 236 Pa. Super. 184, 345 A.2d 267 (1975). I agree. The warrant recited the following facts: the affiant, a Pennsylvania State Trooper, had purchased a large amount of marijuana on two previous occasions from one Carlos "Guerro"; on October 15, 1974, the trooper met Guerrero and went with him to a pre-arranged meeting with Guerrero's supplier, appellant-Burch; appellant-Burch and Guerrero left the area in Burch's automobile and returned 15 minutes later with the contraband. The police subsequently arrested both men. The warrant recited two additional facts: (1) Guerrero had told the affiant that his supplier had recently received a shipment of 200 pounds of marijuana and (2) during the investigation, the police learned that appellant lived in the immediate area of the pre-arranged meeting place.

Appellants contend that the facts relied upon by the magistrate did not amount to probable cause because there was no evidence to prove that the marijuana was stored in Burch's house. Appellants are correct that the police must not only have probable cause that a person under investigation has committed a crime, but also that the evidence sought is in the place to be searched. Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973); Commonwealth v. Kline, 234 Pa. Super.Ct. 12, 335 A.2d 361 (1975). As stated by the Supreme Court in Simmons :

". . . [a]lthough the information supplied the magistrate '. . . must be tested with a commonsense, non-technical, ungrudging, and positive attitude, . . .', Rosencranz v. United States, 356 F.2d 310, 314 (1st Cir.1966); United States v. Ventresca, 380 U.S. 102, 108-09,

[ 248 Pa. Super. Page 1685]

S.Ct. 741, 746, 13 L.Ed.2d 684 (1965), the information must be sufficient '. . . to enable the magistrate independently to judge of the validity of the informant's conclusion that the narcotics were where he said they were.' Spinelli, [ v. United States, (1969)], 393 U.S. [410] at 413, 89 S.Ct. [584] at 587, 21 L.Ed.2d 637 (emphasis added). See also Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)." 450 Pa. at 629, 301 A.2d at 822.

However, I agree with the Majority that the warrant was sufficient on its face. Guerrero told the affiant that his supplier had recently received 200 pounds of marijuana. More importantly, the affiant stated that Burch lived nearby and that Burch and Guerrero had driven away to acquire the marijuana that Guerrero was to deliver to the affiant. The conclusion that the two men picked up the contraband at Burch's home was ...

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