Appeal from Order of Superior Court entered September 6, 1985, at Nos. 831 & 832 Philadelphia 1984 reversing the Judgment of sentence of the Court of Common Pleas of Montgomery County, Criminal Division, entered May 7, 1984 at Nos. 875-83A and 875-83B.
Mary M. Killinger, Chief, Appeal Div., Fort Washington, James W. Stauk, Roslyn, for appellant.
John G. McDougall, Philadelphia, for appellees.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Flaherty, J., files a concurring opinion in which Zappala, J., joins. Zappala, J., files a concurring opinion. Stout, J., did not participate in the consideration or decision of this matter.
Appellees Robert H. Weidenmoyer and Deborah Jo Carter were convicted of violations of the Controlled Substance Drug, Device and Cosmetic Act*fn1 and of criminal conspiracy.*fn2 Weidenmoyer was sentenced to a term of imprisonment of one and one-half to five years, and Carter to a term of two to twenty-three months. The Superior Court reversed the sentences and relinquished jurisdiction. 350 Pa. Super. 630, 503 A.2d 454. The Commonwealth sought review of that decision in this Court, and we granted allocatur to address the question of whether the search warrant executed by police to recover evidence used against appellees was based on probable cause under Art. 1 Sec. 8 of the Pennsylvania Constitution.*fn3
On March 1, 1983, Trooper Walter A. Weniger, Jr., of the Pennsylvania State Police applied for a warrant to search the premises of 439 Main Street in Trappe, Pennsylvania, based upon the following affidavit:
1. The affiant in this affidavit is Tpr. Walter A. WENIGER, Jr., of the Penna. State Police. Tpr. WENIGER has been a member of the State Police for over fifteen (15) years. He has worked in the Narcotics Field for over ten (10) years and has been involved in over five-hundred (500) drug investigations. He is currently assigned to the
Region II Narcotics Strike Force which investigates drug violations in Southeastern Penna.
2. On 28 February 83, the affiant received information from Cpl. Gregory DELP, Patrol Unit PSP Limerick, that on 27 February 83, at approximately 1945 hours, he was involved in an interview with Hazel Maxine COON, W-F-35, DOB -- 9-23-47, from Semmes, Ala., in reference to drug information concerning Robert Harry WEIDENMOYER, aka "BABBIT". Ms. COON related that she was staying at BABBIT'S residence in Trappe, Penna., which is located at 439 Main Street, Trappe, Penna., with a Walt KUGLER. They stayed at Babbit's residence from Friday 25 February 83 until the present date (27 February 83). While she was at BABBIT'S residence she observed a plastic bag with white powder in it, which she believed to be cocaine. She was offered this white powder to use by BABBIT, however refused.
3. Cpl. DELP also related to the affiant on 28 Feb. 83, that Ms. COON further related to him that while she was at BABBIT's residence (21-27 Feb. 83) she observed people coming to the residence, for what appeared to her, as buying drugs from BABBIT.
4. Robert Harry WEIDENMOYER, W-M-33, DOB -- 5/31/49, is known to the Penna. State Police as being a member of the War-Locks Motorcycle Gang. The affiant checked the files at PSP Limerick and learned that WEIDENMOYER had been arrested five (5) times for various charges including assault, robbery, trespass and uniform firearms act.
5. On 1 March 83, the affiant checked with a confidential informant, in reference to the activities of WEIDENMOYER. This informant has supplied information to the affiant in the past and has proved this information to be true and reliable. This informant has provided the Affiant with information which has led to the arrest and conviction of at least two (2) persons in Montgomery County for drug violations. Both arrests were made for possession and possession with the intent to deliver methamphetamine.
This informant related to the affiant that he/she has known the subject WEIDENMOYER for over one (1) year and during that period of time has known the subject to sell methamphetamine and use cocaine. Approximately six (6) months prior to this date the informant observed the subject WEIDENMOYER with methamphetamine in his possession. The informant further related that WEIDENMOYER has no steady type of employment and to the best of the informant's knowledge his (WEIDENMOYER) sole source of income is selling drugs. The informant has not had personal contact with WEIDENMOYER ...