No. 27 October Term, 1978, Appeal from the Judgment of Sentence in the Court of Common Pleas of Luzerne County, Criminal Division, No. 1446 of 1975.
George Goldstein, Pottstown, for appellants.
Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Price, Gates and Dowling, JJ.*fn*
[ 279 Pa. Super. Page 287]
Following dismissal of pretrial motions to suppress physical evidence, Walter Prokopchak and Helen Prokopchak were tried before the Honorable Robert J. Hourigan and found guilt of possession of marijuana with intent to deliver*fn1 and simple possession of marijuana,*fn2 respectively. The court denied post-trial motions, and appellants take this appeal challenging the admission of physical evidence seized from their home under the authority of a search warrant that allegedly was issued without sufficient probable cause and was improperly executed. We are satisfied by the sufficiency of the facts alleged in the warrant affidavit and the procedures utilized by the officers conducting the search and, therefore, affirm the judgment of sentence.
[ 279 Pa. Super. Page 288]
The warrant to search appellants' home was granted on June 28, 1975, upon the following affidavit:
"I am trooper Thomas P. Baggott, of the Penna. State Police. I have been a member of the state police for over eight years and assigned to narcotic and drug investigation for over 2 years. During that time I have provided information which led to over 100 narcotic arrests and convictions. On 27 May, 1975 I was contacted by a confidential informant who told me that Walter PROKOPCHAK is dealing in drugs and is a partner with one SHELDON MERTZ. The informant told me that PROKOPCHAK made several trips during the month of May and returned with large amounts of marijuana. And that upon PROKOPCHAKs return MERTZ would come during the night and remove his share of the marijuana. On the seventh of June the informant contacted me again and advised that PROKOPCHAK had just made another trip and that MERTZ had already picked up his share. During the month of June surveillance was made of the Prokopchak home on various dates and vehicles belonging to MERTZ were observed at the home. On 25 June 75 the informant told me that PROKOPCHAK had gone on another trip and would return in three or four days with a large amount of marijuana. On this date [June 28, 1975] the informant contacted me and advised that PROKOPCHAK had returned and was in possession of a large amount of marijuana. The informant stated that MERTZ would come late tonight or tomorrow and take his share. This informant has provided information in the past which has resulted in over 5 arrests and convictions and is believed to be true and correct. SHELDON MERTS [sic] is a suspected drug dealer and has been arrested in the past for delivery of marijuana. A night search is requested due to the fact that MERTZ may come during the night and remove some of the drugs. Such night time being after 10:00 P.M."
Having secured the warrant, Trooper Baggott assembled six other troopers to aid in its execution and they proceeded to
[ 279 Pa. Super. Page 289]
the home of Michael Prokopchak, appellant Walter Prokopchak's brother and a member of the Pennsylvania State Police, to allow him the opportunity to witness the search. He declined, and the six troopers continued on to appellants' house. Arriving sometime after 10:40 p. m., Trooper Gushka knocked on the back, front, and garage doors announcing that he was a police officer, but he received no response. The house was unlighted except for a light beside the garage door, and no noise emanated from the house.
The troopers returned to Michael Prokopchak's house to try to ascertain appellants' whereabouts. Michael called his father who came to Michael's home and informed the troopers that he believed his son was at a local restaurant. At the request of one of the officers, appellant's father called the restaurant and notified appellant that the police were at his home with a search warrant to look for drugs. Appellant's father told Trooper Gushka that appellant should be back from the restaurant in fifteen to twenty ...