No. 1052 Pittsburgh, 1980, Appeal from the Judgment of Sentence, Court of Common Pleas, Allegheny County, Criminal Division, No. 7408211.
John H. Corbett, Public Defender, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Spaeth, Johnson and Hoffman, JJ.
[ 303 Pa. Super. Page 269]
Appellant was charged with two violations of The Controlled Substance, Drug, Device and Cosmetic Act*fn1 -- possession*fn2 and possession with intent to deliver*fn3 -- and a violation of the Uniform Firearms Act*fn4 -- firearms not be carried without a license.*fn5 After a non-jury trial, Appellant was convicted and sentenced to a five- to ten-year term for possession with intent to deliver and a concurrent two- to five-year term for violation of the Uniform Firearms Act. Sentence was suspended on the conviction for possession of controlled substance. No appeal was filed.
Approximately fourteen (14) months after sentencing, Appellant filed a PCHA petition which alleged ineffective assistance of counsel. After a hearing on the petition, Appellant's right to appeal was reinstated. The court-appointed counsel failed to file an appeal, so Appellant filed a second PCHA petition on September 4, 1980. The court granted Appellant the right to appeal nunc pro tunc. The instant appeal was filed nunc pro tunc from the judgment of sentence. For the following reasons, we affirm in part and reverse in part.
On November 23, 1974, an informant approached two police officers and told them that Appellant, carrying heroin, money, and a gun, was about to leave his residence to distribute heroin. Previously the informant had supplied one of the officers with accurate information that had resulted in other heroin convictions.
[ 303 Pa. Super. Page 270]
Relying on the informant's statements, the police proceeded to Appellant's residence and found him in his auto. The officers frisked Appellant and found a loaded revolver. A subsequent search pursuant to his arrest disclosed 12.6 grams of heroin in Appellant's sock and $1,012.00 on his person.
Appellant raises three issues. First, did the lower court err in finding that the police had probable cause to arrest Appellant without a warrant? Second, was the evidence sufficient to sustain Appellant's conviction for violation of the Uniform Firearms Act? Third, was the evidence sufficient to sustain Appellant's conviction for possession with intent to deliver?
In considering Appellant's first issue, we begin with the principle stated by our supreme court in In re Betrand, 451 Pa. 381, 303 A.2d 486 (1973):
When, as here, probable cause for a warrantless arrest is based on such hearsay information supplied by an anonymous informer, the arresting officer must have two types of additional information before probable cause is established. First, in order to assure that the tip is not merely an unsupported rumor, the officer must know the underlying circumstances from which the informer concluded that the suspect participated in the robbery. Second, in order to reduce the possibility that a tip meeting the first standard is merely a well constructed ...