No. 79, April Term, 1978, Appeal from Judgment of Sentence entered July 8, 1977 in the Court of Common Pleas of Allegheny County, Criminal Division, at CC 7701317.
Norma Chase, Pittsburgh, for appellant.
Kemal Alexander Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Cercone, President Judge, and Hester, Cavanaugh, Brosky, McEwen, Beck and Johnson, JJ. Cercone, President Judge, and Johnson, J., concur in the result.
[ 308 Pa. Super. Page 189]
We here provide an en banc review of the contention of appellant that the search warrant which resulted in the presentation of demonstrative evidence at his trial was not based upon probable cause. We disagree and affirm the judgment of sentence.
Appellant was found guilty by the distinguished Allegheny County Common Pleas Court Judge James F. Clarke, sitting without a jury, of violation of that section of the Uniform Firearms Act*fn1 which prohibits a former convict from owning or possessing a gun and of violation of the Controlled Substance, Drug, Device and Cosmetic Act*fn2 and was sentenced, after the denial of timely filed post-verdict motions, to serve a term of imprisonment of from one to two years. Appellant initiated an appeal to this court and contended, inter alia, that the search of his apartment conducted pursuant to the instant search warrant was illegal. Appellant bases his contention that the search warrant
[ 308 Pa. Super. Page 190]
was illegal upon the claim that the affidavit of probable cause did not set forth such underlying circumstances as would enable the magistrate to conclude the informant was credible or his information reliable. A careful concentration upon the basic notions of the Fourth Amendment and upon the recent landmark decisions interpreting that Amendment, however, lead us to conclude that there was probable cause for the issuing authority to issue the search warrants.
This case began when Pittsburgh Narcotics Detective Barry Fox, together with his colleagues, applied for a warrant so as to permit the search for and seizure of "Controlled substances and paraphernalia used to package and administer the same, To Wit Dilaudid and any papers and/or documents used to establish residency and I.D." that might be found in a (1) specific unit of a multiple apartment dwelling at a (2) specific address which was (3) the residence of appellant. The detective stated in the section that is captioned --
Probable cause belief is based on the following facts and circumstances:
The affiants were given information by person who has benn [sic] reliable in the past that Rick Prosdecimo is concealing and dispensing Dilaudids from his apt. The informant has observed this activity on a number of occasions in the past and as late as the week of 2-6-77. The informant has just been talking with Rick and Rick told the informant that he has 500 D's on hand right now and that he was waiting for a number of persons to come to the apt. now to buy some. The informant stated that we should hit it this night as he would sell most of them tonight as he was going to turn tomorrow. By turn the affiants know he means purchase more of them for sale.
Information from this informant has resulted in the arrest of Charles Connors of 159 Greenfield Ave. on 9-29-76 and the arrest of Robert Mahaven of 1680 Skyline Dr. on 2-17-76.
[ 308 Pa. Super. Page 191]
Because Rick may sell out tonight the affiants are requesting a night time search warrant to be issued.
The detectives who were the affiants failed in the recitation to refer to a prior court proceeding in which testimony indicated appellant had been sent as an "enforcer" to the West Coast to collect money*fn3 and to a previous conviction upon charges of rape, sodomy and robbery which resulted in the imprisonment of appellant in a State Correctional Institution.*fn4 And while the recitation also failed to supply more precise details concerning the status of the two cases in which information from this informant had resulted in arrests, this recitation does set forth the specific dates upon which such arrests occurred as well as the names of the individuals arrested and their addresses. As a result, this case can be distinguished from Commonwealth v. Chatman, 275 Pa. Super. 5, 418 A.2d 582 (1980) which saw this court determine there was a lack of probable cause for the warrant since the affidavit was totally barren of relevant information concerning the previous arrests.
The execution of the search warrant by the police officers is described in the opinion of the trial judge as follows:
The warrant was obtained and executed the same day in the Greenfield section of Pittsburgh. While the officers were at the unopened door they heard a telephone bell ringing in the apartment and overheard a male voice speaking as on the telephone and saying, 'Do you think they are coming up here -- are they already in the building?' The officers knocked and made appropriate announcements and the same male voice was heard to say, "Wait a minute." The telephone was hung up. The officers waited and knocked again. Sounds of movement were heard inside, but not coming toward the door, whereupon force was used to gain entry to the apartment. The defendant was observed at an open window as some object was seen going out through the window.
[ 308 Pa. Super. Page 192]
Execution of the warrant and a search produced:
1. A .25 calibre automatic pistol.
2. A box of 50 rounds of .25 calibre bullets.
3. A blue and red ski mask.
4. A pair of man's gloves.
5. A pair of sap gloves (leaded).
6. A sum of $4,015.00 in U.S. currency.
7. Five white Rorer 714 tablets.
8. Nineteen white scored tablets.
9. One blue and green capsule.
10. Twenty-six blue ciba tablets.
11. Forty-two yellow Ortho tablets.
Item No. 6, the $4,015.00, was found in two bundles in cash in pockets of a bathrobe hanging in a closet in the apartment. As mentioned above, this money was returned to the defendant prior to trial by order of the Administrative Judge.
The defendant admitted his possession of methaqualone tablets and the cash but disclaimed any proprietary ...