No. 1301 PHILA. 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Lehigh County, Criminal at No. 1209 of 1979.
Richard J. Makoul, Allentown, for appellant.
Jane Roach, Assistant District Attorney, Allentown, for Commonwealth, appellee.
Spaeth, Cavanaugh and Montemuro, JJ.
[ 320 Pa. Super. Page 216]
This is an appeal from a judgment of sentence for possession of a controlled substance and possession with intent to deliver a controlled substance. Appellant argues that he is entitled to a new trial because the search warrant under which the controlled substance in question was seized was invalid. We agree, and therefore reverse and remand for a new trial.
On October 15, 1979, a warrant was obtained to search appellant's residence. The affidavit in support of the request for the warrant alleged:
1. That during the past month (Oct. 5, 1979) we received a complaint that Carmelo Cruz a/k/a Ignacio Rosario is selling dope. (heroin) Nicknamed Fat Man.
2. That during the past, the affiant did receive information from a subject, which was relative to Controlled Substances.
3. That the aforementioned information was investigated by the affiant and was found to be reliable, true and correct to the best of his knowledge and belief.
4. That from the information received, mentioned in facts # 1 and # 2 and # 3 no arrests were made, however the reliability of the aforementioned subject had been established and the subject was now considered a reliable, confidential informant by the affiant.
5. That during the second week in October, 1979, the aforementioned confidential informant did enter the aforementioned premises at 2055 Oake Lane, Bethlehem, Pa. in the presence of Carmelo Cruz.
6. Upon entering the aforementioned premises the confidential informant did observe a quantity of white powder on the table, ...