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COMMONWEALTH PENNSYLVANIA v. DAVID J. FISHER (07/08/83)

filed: July 8, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID J. FISHER, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. ROBERT W. FISHER, APPELLANT



NO. 44 April Term, 1979, No. 45 April Term, 1979, Appeal from the Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County at Nos. CC-7800885 and CC-7800886.

COUNSEL

Alan Berman, Pittsburgh, submitted a brief on behalf of appellants.

Kemel Alexander Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Cercone, President Judge, and Hester, Cavanaugh, Brosky, McEwen, Beck and Johnson, JJ. Johnson, J., files a dissenting opinion.

Author: Mcewen

[ 316 Pa. Super. Page 314]

Each of the two appellants brings to this court a direct appeal from the judgments of sentence imposed after they were each found guilty of violations of the Controlled Substance, Drug, Device and Cosmetic Act.*fn1 We affirm.

Pittsburgh police applied for and were issued a search warrant for the residence of appellants at 913 Southside Avenue in Pittsburgh on January 25, 1978, after they received information from an unnamed informant that a man by the name of Fisher was engaged in the sale of large quantities of marijuana and was expecting to receive a large shipment late in the evening on January 25, 1978. Seven members of the Narcotics Division of the Pittsburgh Police Department took part in the execution of the search warrant on January 27, 1978 at approximately 11:30 a.m. During the course of the search of the suite of rooms occupied by appellant Robert Fisher, his wife and child and appellant David Fisher, the younger brother of Robert Fisher, police seized in excess of nine pounds of marijuana in addition to various items of drug paraphernalia. Appellant Robert Fisher admitted that the nine one pound bags that were found in the combination living/bedroom he occupied with his wife belonged to him. The police found, in the bedroom where the clothes of David Fisher were located, 160 grams of marijuana in a total of ten individually wrapped packets together with drug paraphernalia, including a small scale and various brands of cigarette papers as well as $540.00 in cash and a slip of paper characterized as an "owe sheet". Appellants were arrested and charged

[ 316 Pa. Super. Page 315]

    with violations of the Controlled Substance, Drug, Device and Cosmetic Act.

After a non-jury trial before the learned Judge Loren Lewis, appellants were each ultimately convicted*fn2 of possession of and possession with intent to deliver controlled substances (marijuana) and sentenced.

Appellants argue: (1) that the information contained in the search warrant affidavit did not contain sufficient facts from which the magistrate could conclude that there was probable cause to believe contraband was on the premises to be searched; (2) that the search warrant did not contain sufficient facts from which the magistrate could conclude that the informant was credible or his information reliable; and (3) "that the court erred in finding that the magistrate discharged his constitutional duty of neutrality and detachment in determining to issue a search warrant where the application . . . contained obvious, serious and material discrepancies of fact on its face." Appellant David Fisher, individually, argues that the circumstantial evidence upon which the Commonwealth relied was insufficient to establish beyond a reasonable doubt that he possessed the marijuana seized with the intent to deliver.

The thrust of the initial argument of appellants is that the first prong of the Aguilar/Spinelli two prong test for determining the validity of affidavits of probable cause in search warrants was not met because the affidavit did not contain sufficient underlying circumstances and facts from which the magistrate could independently conclude that there was probable cause to believe contraband would be found on the premises to be searched. The text of the affidavit of probable cause states:

Affiant has received information from a confidential reliable informant, that narcotics can be found in the above residence. Informant also states that during the week of Jan. 9, 1978 he was with a acquaintant (sic) in the above residence and did observe the sale of 2 lb. of marijuana by Mr. Fisher, to the acquaintant.

[ 316 Pa. Super. Page 316]

Informant further states that he again was in the residence on the date of Jan. 25, 1978, with the acquaintant, at which time the acquaintant requested 2 lb. of marijuana from Mr. Fisher, who stated that at this time he had only one lb. and that was sold, but he (Mr. Fisher) would have 20 lbs. delivered to him late in the evening of Jan. 25, 1978.

This information was relayed to the detectives, by the informant on the date of Jan. 24, 1978 at approx. 8:30 p.m.

Informant has proven to be reliable in the past with information that had led to the arrest of the following persons, for violation of the narcotics laws. (Louis Esposito 1/6/78 Marijuana pills, Emmett Rowlett 11/4/77 Heroin/Demeral [sic], Thomas Warren 12/12/77 Marijuana/Cocaine.)

The basis for the initial claim arises in part from the first paragraph of the affidavit where the affiant related that, on January 9, 1978, the informant was in the premises at 913 Southside Street with an acquaintance and that he observed Mr. Fisher sell two pounds of marijuana to the acquaintance. Appellants argue that even if a sale of controlled substances, namely, marijuana, had actually taken place seventeen days prior to the issuance of the search warrant, that information by itself is so remote in time from the time of the application that it is stale and thereby insufficient to sustain a finding of probable cause to believe that contraband would be present on the premises at the time of the application for the warrant.

Appellants further argue that the second paragraph of the affidavit -- in which the informant indicated that Mr. Fisher stated that he had possession of only one pound of marijuana that had already been sold but that he would have twenty pounds delivered to him late in the evening of January 25, 1978 -- did not provide sufficient facts to establish or permit the inference that any marijuana would be found on the premises on January 26 or 27, 1978. Appellants urge in support of this argument that the informant

[ 316 Pa. Super. Page 317]

    did not say (1) "that he (Fisher) sold even one pound on January 25, 1978" or (2) "that even one pound was in the house" or (3) "that the twenty pounds were to be delivered to Fisher at the house." Hence, they argue that there were insufficient facts set forth in the affidavit to conclusively ...


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