No. 808 April Term, 1977 Appeal from the Order of the Court of Common Pleas, Criminal Division, of Allegheny County at No. CC 7700507 A.
Charles W. Johns, Assistant District Attorney, Pittsburgh, for Commonwealth, for appellant.
Bruce A. Carsia, Pittsburgh, for appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Cercone, President Judge, files an opinion in support of affirmance in which Hoffman and Spaeth, JJ., join. Van der Voort, J., files an opinion in support of reversal in which Price and Hester, JJ., join. Jacobs, former President Judge, did not participate in the consideration or decision of this case.
The six judges who heard this appeal being equally divided, the order is affirmed.
CERCONE, President Judge, in support of affirmance:
This is an appeal by the Commonwealth*fn1 from the order of the court below granting appellee's motion to suppress evidence that had been seized pursuant to a warrant. Believing the affidavit in support of the search warrant to be constitutionally infirm, we would affirm.
On January 7, 1977, Officer Joseph Saunders of the Wilkinsburg Police Department appeared before a local magistrate and obtained a search warrant for appellee's residence. The affidavit in support of probable cause recited as follows:
"The affiant received information from a reliable informant who in the past has been very knowledgeable about the narcotics traffic in the Wilkinsburg area, this informant now states that at 1362 Singer Pl. that Heroin is
now being stored and sold by a C/M known to him as Henry Chatman. This informant also states that he and a friend were in the residence within the past 48 hrs. and his friend did purchase from Henry Chatman, three 1/2 spoons of Heroin for $75.00 and his friend did inject into his arm one of these 1/2 spoons of Heroin. Friend stated the dope was very good and also while the informant was in this residence an unknown B/M did purchase a 1/2 oz. of Heroin from Henry Chatman and then this unknown B/M did leave and Henry Chatman stated to the informant that (he) Henry Chatman could handle all the dope that the informant and his friend wanted and the price would get better when the informant and his friend became steady people. This informant has given information in the past which led to the arrest of Curtis Williams and Earl Montel." (Emphasis added.)
The sole issue raised on this appeal is whether the averment that the informant's prior information led to the arrests of certain named individuals is sufficient ...