No. 56 January Term, 1979, Appeal from the Order of the Superior Court, affirming the Judgment of Sentence at No. 1130, March Term, 1976, of the Court of Common Pleas, Criminal Division, Philadelphia County.
John W. Packel, Chief, Appeals Div., Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Philadelphia, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., concurs in the results. O'Brien, C. J., and Roberts, J., filed dissenting opinions.
On February 24, 1976, appellant, Robert Stamps, was arrested and charged with possession and possession with intent to deliver a controlled substance.*fn1 A search, pursuant to warrant, had uncovered twenty-five (25) packets of heroin in appellant's apartment. A timely motion to suppress the
evidence was filed, but after a hearing, denied. On October 29, 1976, appellant was tried without a jury and convicted on both charges. Post-trial motions were filed, and on April 19, 1977, an arrest of judgment was granted with respect to the charge of possession with intent to deliver,*fn2 all other motions, however, were denied and a sentence of six to twelve months was imposed. Thereafter, an appeal was taken to the Superior Court, and the judgment of sentence was affirmed. Commonwealth v. Stamps, 260 Pa. Super. 108, 393 A.2d 1035 (1978). We granted allocatur and now affirm.*fn3
On Thursday, February 19, 1976, a reliable informant*fn4 told Police Officer Victor Marcone (1) that "in the past 10 days" he had been inside appellant's second floor apartment at 1211 South 47th Street in Philadelphia; (2) that he had observed appellant with approximately ten bundles of heroin in his possession; (3) that appellant told him he was going to sell the "stuff" in one-half hour for $800.00 to a person named "Roy;" (4) that he also had seen appellant on another occasion leave his apartment with three bundles of heroin to sell to two different persons; (5) that customers "always" called appellant's telephone number before visiting his apartment to purchase drugs.*fn5
Thereafter, on Monday, February 23, 1976 from 11:20 a. m. to 11:50 a. m., police conducted a surveillance of the building in which appellant's apartment was located. At that time, they observed two persons enter the building and leave after a short period. On the basis of an affidavit prepared by Officer Marcone immediately after conducting
the surveillance, a search warrant was issued on February 23, 1976. The following day Officer Marcone went to appellant's apartment building with the warrant, knocked on the front door, identified himself as a police officer, and waited for about two and one-half minutes before being admitted. While waiting, he heard someone running from the door.
After being admitted by appellant, Officer Marcone proceeded upstairs to appellant's second floor apartment, where he discovered a second male sitting in the kitchen staring into an open oven.*fn6 Another man then walked down from the third floor apartment into the kitchen of appellant's apartment. Thereafter, Officer Marcone searched the apartment and found twenty-five packets of heroin under the cushion of a couch located in the "combination parlorbedroom."*fn7 He also discovered a telephone bill and an electric bill for the apartment addressed to appellant. After he was arrested, appellant, who kept his clothing in the kitchen and in the parlor-bedroom, was permitted to dress.
Appellant here raises two issues: (1) whether the affidavit prepared by Officer Marcone was based on stale information which could not support a finding of probable cause, and (2) whether the evidence adduced at trial was sufficient to establish appellant's possession of contraband in light of the presence of other persons in the apartment at the time of the search.
The probable cause portion of the affidavit provided:
I Plcm. # 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 [Robert Stamps] have in his possession approx. 10 bundles of alleged Heroin which he stated to the informant was for one person named Roy who was coming over in a half an hour to buy
the stuff for $800.00. This informant stated that there were approx. five other person [sic] in this apt. and that he would not be shore [sic] who to blame if it link [sic] 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 apt. 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 [sic] phone number was 349-8533 and that before any of the aboves [sic] 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 approx. 11:20 a. m. to 11:50 a. m. a surveillance was conducted at the above location and two persons were seen entering and leaving 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 [sic] a surveillance I believe that the above named person is selling and storing large quantities of Heroin from inside of his apartment.
Appellant contends that the informant's observation of criminal conduct no more than fourteen days prior to the issuance of the warrant was too remote to support a finding of probable cause at time of issuance, and that the evidence discovered pursuant ...