No. 128 April Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Erie County, at No. 2510 of 1976.
Michael J. Veshecco, Erie, for appellant.
Robert H. Chase, District Attorney, Erie, submitted a brief for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hester, J., files an opinion in support of affirmance in which Price and Van der Voort, JJ., join. Cercone, J., files an opinion in support of reversal. Spaeth, J., files an opinion in support of reversal in which Jacobs, President Judge, joins. Hoffman, J., did not participate in the consideration or decision of this case.
[ 262 Pa. Super. Page 99]
The six Judges who decided this appeal being equally divided the judgment of sentence is affirmed.
[ 262 Pa. Super. Page 100]
OPINION IN SUPPORT OF AFFIRMANCE
Presently before the Court is Appellant's appeal from the judgment of sentence from Appellant's conviction for violations of "The Controlled Substance, Drug, Device and Cosmetic Act"*fn1 to-wit, Possession of Heroin and Possession of Heroin with Intent to Deliver, and Criminal Conspiracy (18 Pa.C.S.A. 903).
Following Appellant's conviction by a jury, his Motions for New Trial and/or in Arrest of Judgment, were timely filed, argued and subsequently denied.
On August 4, 1977, Appellant was sentenced to a term of imprisonment of 4 to 8 years. Thereafter, this timely Appeal.
Appellant posits four arguments in support of the present appeal.
We are of the considered opinion that all of the Appellant's contentions are without merit and therefore we affirm the judgment and sentence of the lower court.
Appellant first posits that the search warrant or affidavit of probable cause was defective in two material respects: (a) that the description of the place to be searched lacked the requisite specificity, and (b) the allegations contained therein were "stale".
We do not agree. The search warrant describes the premises to be searched as "549 West 10th Street, Erie, Pennsylvania. A 2 1/2 white aluminum sided multi-unit dwelling, the front door is on the east side of the residence facing north, the downstairs apartment. Has grey steps leading to the front porch." (Emphasis added). It was in this downstairs unit that the contraband was seized and Appellant arrested.
Pennsylvania Rule of Criminal Procedure 2005(c) requires:
[ 262 Pa. Super. Page 101]
Each search warrant shall:
(c) name or describe with particularity the person or place to be searched.
Moreover, when faced with a comparable situation in Commonwealth v. Kaplan, 234 Pa. Super. 102, 339 A.2d 86, 87, 88 (1975), we stated:
"In Commonwealth v. Fiorini, 202 Pa. Super. 88, 195 A.2d 119 (1963), we held that it is not necessary to a valid description of an apartment that its location within a particular building be given. To the contrary, a search warrant directing a search of an apartment house occupied by a number of different tenants, which states the name of the person occupying the apartment to be searched is valid. Commonwealth v. Fiorini, supra. Turning to the search warrant at issue in the instant case, it is apparent that the warrant set forth the name of the occupant of the apartment to be searched, the street address of the apartment building, and its location on the third floor of the building in which it was situated. Thus, the warrant measured up to the standard enumerated in Fiorini supra."
We find that in the instant case the description of the place to be searched was sufficiently specific and satisfied the standards set forth in Pennsylvania Rule of Criminal Procedure 2005(c) and Fiorini (supra) and Kaplan (supra).
We similarly conclude that the affidavit of probable cause was not founded on "stale" information as Appellant alleges, nor was the information contained in said affidavit legally insufficient so as not to justify the issuance of said warrant.
Neither Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973), nor any other case cited by Appellant or known to this Court has held that information supplied by a reliable informant becomes "stale" with 72 hours.
Similarly, we find that the information supplied by two independent informants was sufficient to constitute probable cause for the issuance of said warrant.
[ 262 Pa. Super. Page 102]
In U. S. v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), the Supreme Court indicated that an affidavit must contain the underlying "facts and circumstances" from which the issuing authorities could find "probable cause". As in the instant case, when the information is hearsay and is received from police informants, four factors should be considered: 1) accurate information previously given by the informant, 2) corroboration of the informant's story by other sources, 3) personal and recent observations of the informant which amount to a declaration against interest, and 4) the reputation of the defendant with the police if supported by prior events within the affiant's own knowledge. Harris, supra at 581, 91 S.Ct. 2075. See also Commonwealth v. Falk, 221 Pa. Super. 43, 290 A.2d 125.
The affidavit of probable cause clearly satisfies the minimum requirements of reliability set forth above.
Next, Appellant claims that the lower court erred in permitting certain Commonwealth cross examination of a defense witness who had earlier testified as to Appellant's character. On direct examination, Mrs. Jessie Kelly testified:
"Q. OK, how long have you known Mr. Mayfield, Ma'am?
Q. Have you ever talked to any people about Mr. Mayfield?
Q. Could you estimate for us the number of people that you have talked to about Mr. Mayfield?
A. Five, six, or maybe more.
Q. From talking to these people about Mr. Mayfield over a period of two years have you been able to gather an opinion as to what Mr. Mayfield's reputation in which he works or lives is as to being a peaceful truthful, law-abiding citizen?
[ 262 Pa. Super. Page 103]
Q. And is that reputation for being a peaceful, truthful, law-abiding citizen good or is it bad?
Thereafter, on cross the following dialogue took place:
"Q. Now, you said you discussed Mr. Mayfield's reputation for peacefulness, truthfulness and being law-abiding with other people in the community?
Q. Do you recall the names of those people?
A. Yes, Mr. Hank Washington, personnel director for Massey-Ferguson, where I am employed, Reverend Hall, he was a friend of the family's, and Mrs. Maxine Tompkins.
Q. When did these discussions take place?
Q. Did these take place before or after he was arrested ...