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COMMONWEALTH PENNSYLVANIA v. FRANK J. MILEY (04/29/83)

filed: April 29, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
FRANK J. MILEY, APPELLANT



No. 2099 PHILADELPHIA, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 1910 May, 1980.

COUNSEL

Warren R. Hamilton, Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Hester, Cirillo and Johnson, JJ.

Author: Hester

[ 314 Pa. Super. Page 90]

Appellant, Frank J. Miley, was charged on March 17, 1980 with possession with intent to deliver a controlled substance; manufacturing and possessing with intent to manufacture or deliver a controlled substance; and, intentionally possessing a controlled substance. He was found guilty of all charges following a non-jury trial in the Court of Common Pleas of Philadelphia County, Pennsylvania, and sentenced to a total term of imprisonment of not less than three (3) nor more than ten (10) years in a State Correctional Institution.

[ 314 Pa. Super. Page 91]

On March 17, 1980, Officer Raymond Stackhouse of the Philadelphia Police Department, received a telephone call from a confidential informant identifying appellant as the processor and seller of methamphetamine in a three story row house at 3831 Haverford Avenue, Philadelphia. Furthermore, the informant described appellant as a Negro male, age 45, 6 feet tall, the owner and operator of a blue and white 1975 Buick Electra and the frequent adorner of cowboy boots and cowboy hat. Finally, he informed Officer Stackhouse that appellant planned to move his methamphetamine lab that day, March 17, 1980.

Before securing a search warrant, Officers Stackhouse and Dougherty, in plain-clothed attire, surveyed the row house from inside their parked, unmarked vehicle. Appellant was observed leaving the house; however, upon detecting the surveillance vehicle, his suspicions were apparently aroused and he retreated to the inside of the house. When appellant poked his head outside the front door a short while later, the officers approached him.

Both officers ascended the three steps leading directly from the sidewalk, running parallel to the street, to the threshold of appellant's row house. The exterior front door was open; consequently, the officers unobstrusively stepped into the hallway vestibule to shelter themselves from the rain and converse with appellant. The methamphetamine odor was detected at that point.*fn1

The officers informed appellant that they planned to secure the residence and obtain a search warrant. They entered the first floor apartment from the interior doorway leading from the vestibule. Once inside, Officer Stackhouse called his supervisor, Lieutenant John Wilson, who, upon arrival, instructed Officer Stackhouse to obtain a search

[ 314 Pa. Super. Page 92]

    and seizure warrant for appellant's premises. Officer Stackhouse departed to do so.

Three other officers arrived to join Lieutenant Wilson and Officer Dougherty in securing the premises. Officer Stackhouse did not return with the search warrant for two and one-half hours; nevertheless, in the meantime, the officers at the scene obtained a key to a door at the end of the vestibule hallway leading to the second and third floors and discovered the chemicals, filters, flasks, tinfoil, bottles, face masks, scales, tubes, alcohol and other accessories used in processing methamphetamine. This paraphernalia was removed following Stackhouse's arrival with the search warrant.

Following his conviction of the aforementioned crimes, appellant's motions for a new trial and arrest of judgment were denied. This appeal is taken from the judgment of sentence.

Appellant first alleges that no probable cause existed for the issuance of the search warrant. He avers that the issuing magistrate had no knowledge of how the informant acquired his information of appellant's alleged illicit activity. Furthermore, according to appellant, Officer Stackhouse's detection of the methamphetamine odor was not an element of probable ...


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