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COMMONWEALTH v. SAMUELS (06/24/75)

decided: June 24, 1975.

COMMONWEALTH
v.
SAMUELS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, July T., 1972, Nos. 527 and 2895, in case of Commonwealth of Pennsylvania v. Andrew R. Samuels.

COUNSEL

Parker H. Wilson, with him Wilson, Oehrle & Drayer, for appellant.

Stewart J. Greenleaf, Assistant District Attorney, with him Ross Weiss, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Watkins, P. J. Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Price, J. Concurring Opinion by Cercone, J. Hoffman, J., joins in this concurring opinion.

Author: Price

[ 235 Pa. Super. Page 196]

Appellant was found guilty by the trial judge sitting without a jury of possession of dangerous drugs.*fn1 Following denial of motions for a new trial and in arrest of judgment, appellant was sentenced to pay the costs of prosecution, to pay a fine of $2,000, and to undergo imprisonment for not less than 11 months nor more than 23 months. This appeal followed.

The facts as recited in the lower court opinion and amply supported in the record reveal that following an extensive investigation by the Pennsylvania and New Jersey State Police, a search warrant was obtained on August 5, 1972, authorizing the search of a house and barn located at 94 Hiffletrayer Road in the Green Lane section of Marlboro Township, Montgomery County, Pennsylvania. That same day, Pennsylvania State Policemen proceeded to the above location to execute the warrant. However, the premises were unoccupied and the police then set up a continuous surveillance of the house and barn.

At approximately 11:00 p.m. on August 6, 1972, the troopers observed two vehicles drive onto the property.

[ 235 Pa. Super. Page 197]

The police approached the house and officers were stationed at various points to prevent escape. Corporal Bason, the officer in charge, glanced into the house through a window and observed appellant and another person seated in the living room with a weighing scale and a number of packages wrapped in paper on a table and on the floor between them. The police proceeded to the front door and pounded on it, causing the door to open several inches. The officers testified that they heard a dog growling and running towards the door. The troopers then pushed the door completely open and entered the house. They immediately informed appellant that they were police, that they had a warrant to search the premises, and that appellant was to control his dog.

The search of the house and barn proved very fruitful as the officers uncovered a large amount of marijuana. The police confiscated 14 "bricks" of marijuana from the table and floor in the living room where appellant was, each wrapped in brown paper and each weighing approximately 486.7 grams. In addition, the police uncovered 16 similar bricks of marijuana in the attic, 32 jars each containing approximately 100 grams of hashish in the barn, 27 peat pots containing germinating marijuana plants in the second floor bedroom, 443 grams of marijuana in a bag in the living room, and other "narcotics paraphernalia" from various parts of the house.

Appellant first complains that the trial court was in error when it refused to allow the appellant to inspect notes used by one of the Commonwealth's witnesses to refresh his memory the day before the suppression hearing. The witness, a state policeman, used these notes before the hearing began and did not refer to them while on the witness stand. The applicable law in the Commonwealth concerning a defendant's right to examine such notes is set forth in Commonwealth v. Fromal, 202 Pa. Superior Ct. 45, 195 A.2d 174 (1963). The Fromal court held that where a witness does not use his notes in court,

[ 235 Pa. Super. Page 198]

    but rather uses them outside of court to refresh his memory, a party has no absolute right to have them produced and to inspect them. The trial court's discretion controls, and we will reverse only for a clear abuse of the discretion. However, we find no abuse of discretion which would warrant a reversal in the present case.

Appellant contends that the physical evidence seized by the police should have been suppressed because the probable cause which supported the warrant was based on erroneous information. Appellant argues that the officers gave conflicting testimony at the suppression hearing. Trooper Coyle of the New Jersey State Police testified that an informant had assured him that there was a large amount of controlled, dangerous substance (marijuana) at the farmhouse, while Corporal Bason and Trooper Weniger of the Pennsylvania State Police testified that Trooper Coyle had told them that the informant had been at the farmhouse on August 4, 1972, and had observed the marijuana. Appellant argues that Corporal Bason and Trooper Weniger were not actually told by Trooper Coyle that the informant had been at the scene, but that the officers added this extra bit of information on their own. We do not agree.

Trooper Coyle testified at some length at the suppression hearing and was quite candid about the information received from the informant and the development of the case against appellant. Appellant had the opportunity to cross-examine Trooper Coyle as to any of his testimony, but appellant elected not to ask any questions of this witness. Neither Corporal Bason nor Trooper Weniger heard Trooper Coyle's testimony as all witnesses were sequestered. Nevertheless, both Bason and Weniger gave substantially the same statements at the hearing. We do not see the inconsistency appellant perceives to be lurking in the record, and do not feel constrained to reverse on appellant's speculation.

To determine if there was adequate probable cause to support the issuance of the warrant, the magistrate could

[ 235 Pa. Super. Page 199]

    consider both the affiant's written statement and his sworn oral testimony. Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973).*fn2 The factual averments contained in the affidavit supporting the complaint for a search warrant were recited in the lower court opinion as follows:

"(1) That on or about June 7, 1972, Corporal Francis Bason (the affiant) and Trooper Walter Weniger of the Pennsylvania State Police received information from Trooper Cliff Coyle of the New Jersey State Police that an informant had stated to him that a number of individuals from the Ocean Gate, New Jersey area were known to travel to a farm in Montgomery County to purchase marijuana;

(2) That the informant had provided the New Jersey State Police with information in the past and that the information had proven to be reliable;

(3) That on June 8, 1972, Trooper Coyle reported to Corporal Bason and Trooper Weniger that the same informant told him that the farm was occupied by one Andrew Samuels and that the location of the farm was at 94 Hiffletrayer Road, Green Lane, Pennsylvania;

(4) That on June 8, 1972, Corporal Bason and Trooper Weniger learned from the United States Postal authorities that one Andrew Samuels received mail at 94 ...


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