No. 1641 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County at No. 1130 March Term, 1976.
John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., files a concurring opinion. Spaeth, J., files a dissenting opinion. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 260 Pa. Super. Page 110]
The appellant, Robert Stamps, after trial before a judge sitting without a jury, was convicted of possession of a controlled substance and possession with intent to deliver a controlled substance. Arrest of judgment was granted on the delivery charge.
On this appeal, the appellant raises two claims of error. Appellant first claims there was no probable cause established for the issuance of a search warrant, pursuant to which appellant's apartment was searched by the police. His second argument is that the evidence was insufficient to sustain his conviction for possession of a controlled substance.
The record shows that on February 19, 1976, Philadelphia police officer Victor Marcone received information from an informant, that within the preceding ten days the informant had seen the appellant in the possession of ten bundles of heroin. The informant had made his observation in the appellant's second floor apartment at 1211 South 47th Street in Philadelphia. The informant further stated that the appellant told him that the heroin would be sold for eight hundred dollars ($800.00) to a person named Roy. The informant further related that he had observed the appellant, on another occasion, depart from his apartment with three bundles of heroin which he intended to sell at a bar. The informant also advised officer Marcone of the appellant's phone number, which police found to be registered to the appellant at the South 47th Street address. The informant had provided officer Marcone with information in the past which had led to approximately eight to ten arrests resulting in confiscations of illicit goods.
As a result of receiving this information, the police conducted a surveillance of appellant's residence on February 23, 1976. On the same date, Officer Marcone sought and
[ 260 Pa. Super. Page 111]
obtained a search warrant for the appellant's apartment. In support of the application for the warrant, the following was set forth as probable cause:
I policeman # 4334 having received information from a reliable informant 2-19-76 that he was inside of the above location in the past 10 days and did see the above named person have in his possession approximately 10 bundles of alleged heroin which he stated to the informant was for one person named Roy who was coming over in half an hour to buy the stuff for $800.00. This informant stated that there were approximately five other persons in this apartment and that he would not be sure who to blame if it link out to the cops about this certain transaction. The informant also stated that he on another date seen the above named person called (Brother Rob) leave this apartment with three bundles of heroin on his possession and was going to the bar to sell them to two different persons. This informant also stated that this person phone number is 3498533 and that before any of the above customers come over they always call. This informant in the past two years has given me information which has resulted in a number of arrests with evidence confiscated on all arrests. A check with the phone company of the number supplied to me by this informant was made and found it to be in the name of the above living at the above location. On 2-23-76 from approximately 11:20 a. m. to 11:50 a. m. a surveillance was conducted at the above location and two persons were seen entering and having this location after staying only a short period of time, one of the persons being a white male. Due to the information received from this reliable informant along with a phone check an a surveillance. I believe that the above named person is selling and storing large quantities of heroin from inside of his apartment.
In a subsequent search of appellant's apartment, on a couch within two feet of his bed, the officers found ...