No. 2341 October Term, 1977, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Bucks County, at No. 1432/1977.
Stephen B. Harris, First Assistant District Attorney, Warrington, submitted a brief for Commonwealth, appellant.
Abraham A. Hobson, III, King of Prussia, for appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. An opinion per curiam in support of affirmance is filed in which Jacobs, President Judge, and Cercone and Spaeth, JJ., join. Price, J., files an opinion in support of reversal in which Van der Voort and Hester, JJ., join. Hoffman, J., did not participate in the consideration or decision of this case.
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The six Judges who decided this appeal being equally divided, the order is affirmed.
Opinion IN SUPPORT OF AFFIRMANCE
The Commonwealth is appealing from an order suppressing evidence seized pursuant to a search warrant. The suppression court found, and we agree, that there was no reliability proven for certain hearsay information, and therefore,
[ 261 Pa. Super. Page 364]
this information could not serve as a basis for probable cause to issue the warrant.
The affidavit for the search warrant revealed that on the basis of information supplied by a confidential informant, whose reliability was established, the state police wanted to search a farmhouse at 34 Fretz Road. The following is the pertinent language of the probable cause section excerpted from the affidavit:
3. Said confidential reliable informant did advise this affiant that within the past week he had occasion to be at the above mentioned residnece [sic] and observe a subject known as David MCKEEVER enter the above residence and exit same carrying a bag which said informant observed to be marijuana a controlled substance. Subject MCKEEVER is a known seller of marijuana and has been arrested by the Penna. State Police in the past for delivery of a controlled substance.
4. MCKEEVER also related to confidential reliable informant that subject living in residence was Harry DEAN and dealt large quantities of marijuana and that subject DEAN expected ...