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COMMONWEALTH v. WEYMAN (04/22/75)

decided: April 22, 1975.

COMMONWEALTH
v.
WEYMAN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Cumberland County, Feb. T., 1974, No. 44, in case of Commonwealth of Pennsylvania v. John George Weyman.

COUNSEL

Bruce E. Cooper, with him Charles E. Friedman, and Cooper, Friedman & Butler, for appellant.

J. Bozar, Assistant District Attorney, with him Kevin A. Hess, Assistant District Attorney, and Harold E. Sheely, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 235 Pa. Super. Page 117]

Appellant, convicted of conspiracy to violate § 5513 of the Crimes Code,*fn1 contends that the lower court erred in limiting defense counsel's cross-examination of two witnesses and that the Commonwealth failed to prove appellant's guilt beyond a reasonable doubt.

On October 29, 1973, Sergeant Robert Smith, who headed the Crime Device section of the Pennsylvania

[ 235 Pa. Super. Page 118]

State Police, executed a search warrant that authorized a search of Stejan Printing Company, owned and operated by one Stephen Zentmeyer, appellant's co-conspirator. Zentmeyer operated the company in his family's residence in Lower Allen Township, Cumberland County. The search netted 27,000 football lottery tickets and 15,000 blank forms for printing additional football tickets. After the search, Zentmeyer revealed that he had been printing similar tickets for appellant for several months.

Appellant was thereafter indicted for conspiracy to violate § 5513 of the Crimes Code, supra, which prohibits gambling and operating a lottery. He was tried and found guilty on February 14, 1974, by a judge sitting without a jury. Appellant was sentenced to a term of one year's imprisonment and to pay a fine of $2000. Appellant's motions in arrest of judgment and for a new trial were denied on June 26, 1974. This appeal followed the denial of those motions.

Appellant's first contention is that the lower court erred in refusing to allow defense counsel to cross-examine Sergeant Smith as to the basis of the warrant which authorized the search of Zentmeyer's home. The lower court rejected appellant's claim because the court believed that appellant did not have standing to raise the issue and because appellant did not file a pre-trial motion to suppress as required by Pennsylvania Rule of Criminal Procedure 323(b), thereby waiving the issue of the admissibility of the evidence. We cannot reach the merits of appellant's argument concerning his standing to challenge the search of his co-conspirator's home because the issue was in fact waived.

Rule 323(b) provides that "Unless the opportunity did not previously exist, or the interests of justice otherwise require, such application [to suppress the admission of ...


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