No. 959 October Term, 1977, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Luzerne County, at No. 2217 of 1975.
Thomas J. Glenn, Jr., Assistant District Attorney and Patrick J. Toole, Jr., District Attorney, Wilkes-Barre, for Commonwealth, appellant.
Michael J. Cefalo and Joseph F. Castellino, Pittston, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, P. J., files an opinion in support of affirmance in which Hoffman and Spaeth, JJ., join. Cercone, J., dissents based on Commonwealth v. Greco,
Author: Per Curiam
[ 257 Pa. Super. Page 318]
The six Judges who decided this case being equally divided, the order is affirmed.
JACOBS, President Judge, in support of affirmance:
This is an appeal by the Commonwealth from the order of the court en banc granting appellee William Foreman's motion for a new trial. The sole question presented is whether a warrant authorizing the search of appellee's residence was issued upon a sufficient showing of probable cause. I conclude that it was not and, therefore, would affirm.
Appellee was arrested on September 11, 1975, as the result of a search of his residence made pursuant to a search warrant. A motion to suppress the evidence seized from his residence was denied, and appellee was convicted by a judge sitting without a jury of possession and possession with intent to deliver a controlled substance. However, on January 25, 1977, the court en banc granted appellee's motion for a new trial, concluding that the search warrant had been issued without a sufficient showing of probable cause. It is from that order of the lower court that the Commonwealth has appealed.
[ 257 Pa. Super. Page 319]
The affidavit of probable cause in the application for the warrant stated, in pertinent part, as follows:
"On July 14, 1975 the above affiant received certain information from a confidential informant which is the basis of the probable cause for the issuance of this search warrant. . . . I verily believe that the informant is very reliable and the information received is true and correct, because information received in the past from this same informant has led to the arrest and subsequent convictions of certain individuals on 12/12/73, 6/5/74, 6/11/74, 1/15/75 and 5/16/75. On July 13, 1975 afternoon hrs. at the corner of Dana and Hazle Streets, WilkesBarre, Pa.; the informant was in the company of five other males when the conversation got into drugs and where they could get some. At this time Bill Foreman pulled from his pocket a large bundle of plastic packets which the informant believed to be Heroin. When one of the men asked Foreman what he wanted for a packet Foreman said he wasn't selling skag just yet, but he would continue to hold it and maybe change his mind. The informant later followed Foreman to his apt. at 104 Lafayette St., WilkesBarre, Pa., and when the informant saw Foreman again that evening Foreman did not have the bundle of suspected skag with him. The above affiant from information received from the informant believes that because of the large amount seen by the informant, that when Foreman is not carrying it with him he is using his apartment for storage."
An affidavit of probable cause may be based on hearsay information and need not reflect the direct personal observations of the affiant. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Commonwealth v. Greco, 465 Pa. 400, 350 A.2d 826 (1976). However, it still must contain "sufficient information to justify the conclusion that a crime has been committed and that evidence or fruits of the crime may be found at the place to ...