No. 430 March Term, 1977, Appeal from the Judgment of Sentence imposed on July 25, 1977, by the Court of Common Pleas of York County, Criminal Division, No. 617, 1976.
John R. Gailey, Jr., York, for appellant.
Donald L. Reihart, District Attorney, York, submitted a brief for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, President Judge, and Van der Voort and Hester, JJ., join in this opinion. Hoffman, J., files a dissenting opinion in which Cercone and Spaeth, JJ., join.
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Following a non-jury trial on October 6, 1976, appellant was convicted of possession of a controlled substance with
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intent to deliver,*fn1 namely marijuana. Motions for a new trial and in arrest of judgment were dismissed by the lower court, and appellant was sentenced to imprisonment for one to twelve months. Appellant raises three issues for our consideration. Appellant contends that the lower court erred in refusing to suppress certain evidence pre-trial, that there was insufficient evidence to convict and that appellant's demurrer should have been sustained, and that the Commonwealth did not adequately demonstrate appellant's intent to deliver the marijuana. For the reasons set forth herein, we affirm.
Facts essential to our disposition of this appeal are the following. On May 19, 1976, officers of the York City Police Department appeared at a three story residence at 234 Elm Terrace, York, to execute a search warrant. Appellant, another adult and two children were in the house. Police gave Miranda warnings to the adults and explained to them the contents of the warrant. In their search, police uncovered a small marijuana plant on an enclosed porch and approximately eight plastic packets of marijuana in a brown bag on a bedroom closet floor. In addition, police found small scales, a tin box containing green and clear colored capsules, numerous packs of papers for rolling cigarettes and a box containing yellow pills, later identified as vitamins, among other things.
At trial, the Commonwealth produced testimony from two police officers involved in the search that the brown bag containing eight plastic packets of marijuana and approximately 100 capsules later discovered to be PCP*fn2 were found in appellant's bedroom. Appellant did not testify or present any evidence.
Appellant first contends that the lower court erred in refusing to suppress the evidence obtained in the May 19th search. Appellant asserts that although the warrant was
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issued solely upon information received from a confidential informant there was "no surveillance nor independent facts within the personal knowledge of the affiant to aid the magistrate in determining whether there was probable cause." (Appellant's brief at 6).
In accordance with Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 723 (1969), our appellate courts have often reiterated that in order for there to be a valid finding of probable cause to issue a search warrant when the affiant relies upon information derived from an informant, the issuing magistrate must be satisfied (1) that the informant had knowledge of facts sufficient to conclude that the suspect was involved in criminal activity, and (2) that the affiant is justified in believing that the informant is reliable. Commonwealth v. Davis, 466 Pa. 102, 351 A.2d 642 (1976); Commonwealth v. Burch, 248 Pa. Super. 8, 374 A.2d 1291 (1977); Commonwealth v. Early, 236 Pa. Super. 60, 345 A.2d 197 (1975); Commonwealth v. Shealey, 234 Pa. Super. 516, 340 A.2d 471 (1975); Commonwealth v. Kline, 234 Pa. Super. 12, 335 A.2d 361 (1975).
The probable cause section of the affidavit in the instant case stated:
"I was told on May 19, 1976 by a confidential informant, whom I believe to be reliable because on different occassions [sic] the informant has given Det. Larry Myers of Spring Garden Police Dept. information which has proven to be correct and true. Also the information has lead to several arrest. A check with Det. Myers has verified informants reliability. That on May 14, 1976 was at 234 Elm Terrace and personally observed a large quantity of pills (capsules) green and white in color represented to be THC (which is a controlled substance) Again on May 16, 1976 the informant again visited 234 Elm Terrace and personally observed a large quantity of pills (capsules) green and white in color represented to be ...