Aрpellant was arrested, charged, and convicted of possession of a controlled substance with intent to manufacture or deliver. Post-trial motions were filed and subsequently denied. 1 Appellant was sentenced to a term of incarceration of three (3) to six (6) years. He then filed this appeal raising four issues, which actually represent nine claims.
The first contention raised is that the suppression court erred in not suppressing the fruits of a search conducted pursuant to a search warrant. Appellant arguеs that the affidavit of probable cause was inadequate to justify a search and that the premises to be searched were not described with “sufficient precision.” Additionally, appellant complains that the police in executing the warrant violated the “knock and announce” rule. We find that the affidavit of probable cause was adequate and sufficiently precise to justify the search of appellant’s residence and that the execution of the warrant was proper in the circumstancеs of this case.
The affidavit of probable cause read as follows:
Received information from an informant who has given truthful information concerning drugs to the affiant in the past. This informant was sent to said address after being searched by Hbg. Police Officers, observed going to and from said address where a $100 purchase of heroin was made. Said informant also observed more drugs on the premises. Informant was observed leaving the premises and again searched by Hbg. Police Officers. James Davis has been arrested on previous drug charges on 7-18-72 N.Y. City possession of dangerous drugs, 10-23-75 Pa. possession of heroin, 12-6-75 N.Y. possession of controlled substance, 12-8-78 N.Y. drug paraphanalia, [sic] 7-14-79, Hbg. Pa. heroin. The affiant on several *293 routine surveillance observed persons addicted to controlled substances entering and leaving said residence. Below is a list of the serial numbers of the monies used to make said purchase.
In particular appellant complains that while the police alleged that a controlled buy had occurred at the described premises, they did not allege that it had been made from appellant. Additionally, he argues that the trustworthiness of the informant was not established and the allegations of the most recent previous drug involvement were three months old and had not resulted in a conviction. Finally, he contends that there was no indication of when the affiant had observed the coming and going of addicts from appellant’s residence.
In
Illinois v. Gates,
The issuing authority was advised by the affiant of the controlled buy, of appellant’s arrest record, and of the observation of known drug addicts visiting appellant’s apartment. Each such factor is а proper consideration in assessing an application for a search warrant.
See Commonwealth v. Gullett,
In Tolbert, the Commonwealth relied upon a Stale observation by an informant and recent observations of conduct equally consistent with drug trafficking or innocent activity. Probable cause was found not to exist because the informant’s first hand observation was not current and could riot make innocent conduct suspect. Here we have a recent controlled purchase as well as visits by known drug users; the police here did not rely heavily upon the initial tip to support the warrant. In Demchak probable cause was not present, as while the police were aware of the defendant’s prior arrest, his subsequent suspicious conduct was too dissimilar to the prior conduct to justify an intrusion intо his privacy. Here the informant’s purchase of heroin was consistent with appellant’s background.
Probably most similar to appellant’s situation, yet clearly distinguishable, is Davis, supra. There the basis for the search warrant were observations of reputed narcotic dealers coming and going from the defendant’s residence. The defendant himself had a reputation as a drug pusher and had recently been arrested on such charges. Questionable activity was observed near his house. Such information did not afford a reasonablе inference of criminal conduct. However, in appellant’s situation we have the additional fact of a recent controlled buy.
Nor do we find merit to appellant’s objections that the affiant’s failure to indicate when he observed the known drug users coming and going and the staleness of appel
*295
lant’s prior arrests, prevented the issuing authority from finding probable cause present. For as we held in
Commonwealth v. Ryan,
300 Pa.Superior Ct. 156, 170,
In the case at hand the issuing authority could quite properly look at the alleged controlled purchase in light of appellant’s prior arrests and the surveillance at an unknown time and find that it was probable that illicit drugs had been over a period of time and were currеntly being dispensed from appellant’s residence. It is only the probability of criminal conduct, and not a
prima facie
case, of criminal activity that need be demonstrated.
Commonwealth v. Mazzochetti,
299 Pa.Superior Ct. 447,
In regards to the description of the premises, appellant submits that the row house had been converted into two units and had the police checked with his landlord they would have discovered such. In fact he contends the police should have been aware of this from their own informant’s visit to the premises. The trial court accepted the police officer’s testimony to the effect that from the outside there *296 appeared to be only one residence and that according to their information, appellant and his girlfriend were the only occupants. The landlord testified that appellant rented the whole house.
In
Commonwealth v. Andujar,
264 Pa.Superior Ct. 326,
The current case clearly falls within the scope of the above cases and therefore we find that the search warrant did adequately describe the premises. As the police testified they were under the impression, which was correct, that appellant and his girlfriend were the sole occupants of the structure. Visual observations of the exterior of the building did not raise a question as to the unitary occupancy. Therefore we can not find a fatal flaw in the description of the premises.
Appellant’s final challenge to the search is that in executing the warrant the police violated the “knock and announce” rule. When police officers approached the rear of the row house, they observed a black man, other than appellant, who, upon seeing the officers, fled into the row house. The police officers approached the rear door, knocked, and yelled “police”. When they received no re *297 sponse within ten seconds, or so they forcibly enterеd the rear of the building. Another contingency of officers, after being advised by radio of the rear entry, then entered, unannounced through the front door. Once inside, the police encountered a locked door leading to the second floor. They knocked on the locked door, yelled “police” and were requested to wait a minute. They waited several minutes, heard scampering upstairs and pried the door open and ascended the stairs to the second floor. Appellant would have us hold that sinсe there was no announcement of purpose and only a very brief delay before force was used, the initial entry was improper. 3 Similarly, he contends that the entry to the second floor was improper because the police failed to announce their purpose and no exigent circumstances were present to justify the forced entry. We are not persuaded.
Our Supreme Court addressed the “knock and announce” rule in
Commonwealth v. Norris,
We are satisfied in this case that the officers’ partial noncompliance with the “knock and announce” requirement was justified by the presence of exigent circumstances. We recognize that only a limited number of circumstances can be considered to excuse compliance with this Fourth Amendment protection. Sabbath v. United States,391 U.S. 585 ,88 S.Ct. 1755 ,20 L.Ed.2d 828 (1968); United States v. Wylie,462 F.2d 1178 , 1186 n. 53 (D.C.Cir.1972); Commonwealth v. Beard,282 Pa.Super. 583 ,423 A.2d 398 (1980). These are (1) “when the officers may in good faith believe that they or someone within are in peril of bodily harm.” Miller v. United States,357 U.S. 301 , 309,78 S.Ct. 1190 , 1196,2 L.Ed.2d 1332 (1958); (2) when the officers have a basis for assuming that a suspect is “armed or might resist arrest.” Sabbath v. United States,391 U.S. at 585 , 88 S.Ct. at *298 1759; (3) when there is “some affirmative indication to support a belief that еvidence is being destroyed.” Commonwealth v. Clemson,234 Pa.Super.Ct. 191 , 194 n. 1,338 A.2d 649 , 650 N. 1 (1975); Miller v. United States; Commonwealth v. Newman,429 Pa. 441 ,240 A.2d 795 (1968); (4) when there are similar indications that “the person to be arrested is fleeing.” Miller v. United States,357 U.S. at 309 ,78 S.Ct. at 1196 ; Commonwealth v. Newman; or (5) when “the facts known to officers would justify them in being virtually certain that the petitioner already knows their purpose so that an announcement would be a useless gesture.” Miller v. United States, at 310,78 S.Ct. at 1196 ; Ker v. California,374 U.S. 23 ,83 S.Ct. 1623 ,10 L.Ed.2d 726 (1963); Commonwealth v. Newman; Commonwealth v. Fisher, 223 Pa.Super. Ct. 107,296 A.2d 848 (1972).
(Footnote omitted.)
The initial entry here was justified when the police encountered the third party who ran into the row house, locking the door behind him, and failing to respond to the announcement of the police. It has long been the rule in this Commonwealth that where the рolice are reasonably certain that the occupants are aware of their presence and purpose, the police need not knock and announce to give the occupant’s a reasonable opportunity to surrender the premises.
Commonwealth v. Yucknevage, supra, Commonwealth v. Early,
*299
We also find no impropriety in the entranсe to the second floor. The police knocked and announced their identity, though not their purpose, appellant requested they wait a minute. While waiting to be admitted,
5
the police heard shuffling over head, but no indications that they were going to be admitted. Since the focus of the search warrant was narcotics, which could readily be destroyed, the police officers were justified in breaking in as it appeared appellant was stalling for time to destroy the drugs.
Commonwealth v. Pugh,
223 Pa.Superior Ct. 112,
Appellant next contends that trial counsel was ineffective in failing to move for dismissal of the information which had been approved with a rubber stamp facsimile of the district attorney’s signature; failing to object to testimony given by police officers that went beyond their qualifications; failing to object to testimony concerning guns found on the searched premises; and failing to object to the court’s charge. In reviewing a claim of ineffectiveness a two step analysis must be employed:
It is well settled that “[wjhen confronted with a claim of ineffectiveness assistance of counsel, we must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit, and if so, it must be determined whether the course chosen by counsel had some reasonable basis to effectuate his client’s interest.” Commonwealth v. Pittman,295 Pa.Super. 234 , [237],441 A.2d 436 , 437 (1982) (citations omitted). See also Commonwealth v. McKnight, [307] Pa.Super. [213],453 A.2d 1 (1982); Commonwealth v. Bossick, [305] Pa.Super. [196],451 A.2d 489 (1982).
*300
Commonwealth v. Lewis,
314 Pa.Superior Ct. 298, 303,
Appellant relies upon
Commonwealth v. Emanuel,
285 Pa.Superior Ct. 594,
In his second claim appellant argues that while two deteсtives were qualified as experts in “drug paraphernalia,” they went beyond the scope of their qualifications in testifying concerning field tests done on drugs and normal drug usage. He claims counsel was ineffective in not objecting to such testimony.
Both of the detectives complained of, testified as to their experience and training in the field of narcotic investigations and prosecutions. Both were explicitly qualified as experts in drug paraphernalia. Reviewing the
voir dire
of the qualifications of both witnesses, we have little difficulty in concluding that the witnesses could have also been qualified as experts in normal drug use practices and on the scene testing.
See Commonwealth v. Waters,
276 Pa.Superior Ct. 584,
*301 Appellant next complains of counsel’s failure to object to testimony referring to guns found in the row house. He contends that the jury could improperly infer from the presence of the guns that he was engaged in criminal cоnduct, as the weapons were in no way relevant to the prosecution at hand, he insists such reference was improper.
It is a fundamental principle of the criminal jurisprudence of this Commonwealth, that the Commonwealth may not introduce evidence of a defendant’s prior criminal activity as substantive evidence of his or her guilt on the current charges.
6
However, the testimony here, while it may be irrelevant, did not amount to evidence of criminal conduct. In
Commonwealth v. Rivera,
Appellant’s final claim of ineffectiveness is that counsel should have objected to the court’s charge which was not objective and unbiased. Where a charge to the jury adequately states the law and creates no likelihood of confusion, counsel will not be deemed ineffective in failing to oppose the charge.
Commonwealth v. Rowles,
Appellant further alleges that the trial court erred in
sua sponte
charging on the lesser-included offenses of simple possession. A trial court need not charge concerning a lesser-included offense unless there is a rational basis for acquitting the defendant of the offense charged but finding him or her guilty of the included charge.
Commonwealth v. Polimeni,
Here the trial court distinguished between simple possession; 35 P.S. § 780-113(16),
7
and possession with intent to deliver,
Id.
§ 780-113.
8
This was proper as the Commonwealth was required to first show possession and then that such possession was with the intent to deliver to another.
Commonwealth v. Cardona,
316 Pa.Superior Ct. 381,
The final contention appellant raises is that the evidence was inadequate to prove beyond a reasonable doubt his guilt of possession with intent to deliver. He argues that it was not shown that he had exclusive control over the first floor where most of the drugs and the drug paraphernalia were found. As to the second floor, the police, according to appellant, found only a small quantity of drugs and money, as well as the presence of a second person. Again he urges us to find that exclusive control was not shown. He suggests also, that the only drugs that may have been found to be within his control was a small amount retrieved from the commode on the second floor.
When reviewing such a claim we must keep in mind that:
In deciding the sufficiency of evidence, we must accept as true all the evidence, and the reasonable inferences therefrom, upon which the factfinder could have based its verdict and then ask whether that evidence, viewed in a light most favorable to the Commonwealth as verdict winner, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Stasiak, [305] Pa.Super. [257], 263,451 A.2d 520 , 523 (1982); Commonwealth v. Banahasky,250 Pa.Super. 495 , 499,378 A.2d 1257 , 1259 (1977).
Commonwealth v. Pagan,
315 Pa.Superior Ct. 7, 9,
*304 The authorities entrance to the second floor revealed appellant exiting from a bathroom where a flushing commode was heard. The police recovered a small amount of heroin from the commode. Further inspection revealed considerable sums of money, including $1,300 in a wallet bearing appellant’s identification, $1,000 in a suit apparently belonging to appellant, and $301 in the pants appellant was wearing at the time of the search. Though appellant contended that the first floor and second floor were separate apartments, with his girlfriend occupying the first floor and he the second, at the time the search warrant was executed, the second floor kitchen appeared to be not in service as a kitchen and the girlfriend was sharing the second floor bedroom.
If the Commonwealth is unable to prove that a suspect had a controlled substance on his person, the Commonwealth may show constructive possession of illicit drugs, and such may be demonstrated by showing that a defendant had power of control over and intended to exercise such control of such substance.
Commonwealth v. Davis,
308 Pa.Superior Ct. 431,
However, appellant correctly points out that where more than one person has equal access to where drugs are stored,
presence alone
in conjunction with such access will not prove consсious dominion over the contraband.
Commonwealth v. Keblitis,
In Macolino, contraband was found in a closet located in a bedroom shared by the defendant and his wife. The Supreme Court held that, in light of the additional presence in the bedroom of paraphernalia and other items associated with drug trafficking, a fact-finder could conclude that the defendant was aware of the drugs, that he exercised control over them, and that he intended to possess such contraband. While in Harris, the defendant whose mobility was limited as evidenced by his need of a wheel *306 chair, was found to havе shared joint constructive possession with another of drugs found on a windowsill of an adjoining residence. The defendant’s possession and control of drug paraphernalia established the connection with the drugs and his intent to exercise control over the controlled substances. Similarly here, appellant’s actions in attempting to. dispose of the small quantity of heroin, his joint control over the entire row house, and his possession of the large sums of money adequately established his control and intention to control at least some of the drugs, as well as his intention to deliver such to others. 11 Compare Smith, supra (defendant controlled area where drugs and paraphernalia were found and a large sum of money was found under a mattress where a girlfriend was sleeping; evidence was sufficient.)
Judgment of sentence affirmed.
Notes
. While privately retained trial counsel timely filed post-trial motions, they were denied for failure to file a brief in support thereof. Subsequently, the Public Defender’s Office petitioned the trial court for leave to file nunc pro tunc supplemental post-trial motions and a supporting brief. The court granted leave and subsequently denied the supplemental motions.
. Appellant’s claim, that the affidavit did not establish that he was selling drugs is irrelevant. Probable cause is demonstrated if the facts related in the affidavit reasonably show that the items sought are connected to criminal activity and that they will be found in the place to be searched. Ryan, supra. Who is responsible for the presence of the contraband or evidence is not pertinent to issuing a search warrant.
. We believe the entry through the front dоor, shortly after the rear entry, and shortly after those officers at the front were advised by radio to proceed in, should be considered as part of the initial entry through the rear door.
. While the third party was not a resident of the row house, his actions indicated he had some degree of access to the premises and his conduct was clearly intended to inhibit the police from carrying out their lawful duty. Thus exigent circumstances clearly existed.
. Appellant contends that the police waited merely 30 seconds, while the Commonwealth contends the officers waited several minutes. In light of the various circumstances of this case we believe even the lesser amount of time was adequate.
. Of course this rule is subject to a few exceptions, not applicable here, such as when the evidence is admitted to prove common design, scheme, intent or motive.
. (16) Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, unless the. substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act.
. (30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creаting, delivering or possessing with intent to deliver, a counterfeit controlled substance.
. Appellant also complains that the court empowered the jury to find him guilty of simple possession, even though he had not been charged with such. We find no need to address this claim as the court gave the jurors the alternative of finding appellant guilty of a lesser charge. Since the jury nonetheless convicted appellant of the greater charge he clearly suffered no actual prejudice.
. The jury could reasonably hаve excluded the two known drug users, who were present on the premises, from being responsible for the intended drug trafficking as some of the drugs located on the first floor were secreted in the first floor kitchen and all sizable sums of money were located on the second floor.
. For the purposes of this appeal it is unimportant whether the two drug users found on the premises and/or appellant’s girlfriend were also involved in drug trafficking as the evidence at a minimum showed beyond a reasonable doubt that appellant was at least in joint constructive possession of the narcotics. See Commonwealth v. Macolino, supra.