Appeal from the Judgment of Sentence entered December 28, 1987 in the Court of Common Pleas of York County, Criminal Division, No. 560 C.A. 1987.
John R. Gailey, Jr., York, for appellant.
Mark A. Bellavia, Assistant District Attorney, York, for Com., appellee.
Beck, Kelly and Hester, JJ.
[ 381 Pa. Super. Page 627]
Appellant, Carmelo Morales Graciani, appeals from judgment of sentence imposed following his conviction of possession of cocaine with intent to distribute. Appellant's sole contention on appeal is that the search warrant pursuant
[ 381 Pa. Super. Page 628]
to which he was searched and the cocaine was found, was unconstitutional in that it authorized the search of "all persons present" at a private residence without requiring a particularization of the identities of those persons to be searched or the probable cause to suspect criminal activity on the part of those individuals. We find no merit in the contention and affirm judgment of sentence.
FACTS AND PROCEDURAL HISTORY
On February 10, 1987, pursuant to a lawful warrant based on information supplied by a reliable confidential informant, York City Police conducted a search at 534 Jesop Place in York City, Pennsylvania, seized 33 packets of cocaine, and arrested Ricardo Colon on a charge of possession of cocaine with intent to distribute. Subsequently, the same reliable confidential informant informed the York City police that a woman identified as Ricardo Colon's wife had resumed the cocaine retail operation at that residence.
On February 15, 1987, Detective John R. Daryman of the York City Police applied for a warrant to again search the residence at 534 Jesop Place. In his affidavit in support of his warrant request, Detective Daryman indicated the following. His confidential informant had provided reliable information in the past which had led to the conviction of at least eight drug dealers. Information provided by the confidential informant had led to the lawful seizure of 33 packets of cocaine at the residence in question five days earlier. The confidential informant informed the police that within the past three days the confidential informant had personally observed cocaine sales at the residence, conducted by a woman identified as Ricardo Colon's wife. The confidential informant further indicated that the cocaine being sold was kept hidden in the house, and that purchasers who come to the house purchase the cocaine and then secret it on their person before leaving the house.
Based upon those facts, the issuing authority approved a search warrant authorizing the police to search the residence "and all persons present to avoid the destruction or ...