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decided: March 29, 1976.


Appeal from judgment of sentence of Court of Common Pleas of Beaver County, No. 491 of 1974, in case of Commonwealth of Pennsylvania v. John Winters.


J. Lauson Cashdollar, with him Luce, Good, Tosh and Associates, for appellant.

Joseph M. Stanichak, Assistant District Attorney, and Joseph S. Walko, District Attorney, submitted a brief for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Dissenting Opinion by Price, J. Watkins, P.j., and Van der Voort, J., join in this dissenting opinion.

Author: Hoffman

[ 239 Pa. Super. Page 414]

Appellant, convicted of unlawful delivery of a controlled substance,*fn1 raises two contentions: (1) that the evidence was insufficient to sustain the jury's finding of guilt; and (2) that the trial court relied on facts de hors the record in imposing sentence.

On August 1, 1974, police conducted a drug raid in the "Ropes" area of Marion Township, Beaver County. Appellant was searched and released at that time. Three of appellant's associates, however, were arrested and eventually indicted. Based on statements by the three accomplices,*fn2 appellant was arrested on August 26, 1974, and was charged with the unlawful delivery of a controlled substance to Robert Johnston, Kevin Roberts, and Clayton Schlereth. After two days of testimony, on December 11, 1974, a jury found appellant guilty as charged. After the court en banc denied appellant's post-trial motions, the trial court sentenced appellant to a term of imprisonment of eighteen months to five years. This appeal followed.

The Commonwealth presented five witnesses -- two members of the county sheriff's office who acted as undercover agents and the three accomplices. Appellant's argument is based, in part, on inconsistencies in the testimony of the witnesses.

George Yaccich, a Deputy Sheriff for Beaver County, stated that on August 1, 1974, he and two other deputies

[ 239 Pa. Super. Page 415]

    were involved in a drug investigation of the "Ropes" area, where young people congregated. Shortly after the three deputies arrived, they were approached by an unidentified juvenile who offered to sell them some L.S.D. Deputy Cogan accompanied the youth to a van parked nearby and purchased three "lids"*fn3 of the drug. Kevin Roberts then approached the deputies with an offer to sell them marijuana. They agreed to purchase $40.00 worth of marijuana. Roberts and Johnston drove off in an unsuccessful effort to secure the marijuana.

The deputies were joined by Clayton Schlereth and appellant. When Roberts and Johnston returned without any marijuana, appellant said that he knew where to get some. Appellant, Schlereth, Roberts, and Johnston drove off again in Johnston's van. About two hours later, the four young men came back to the "Ropes" area. According to Yaccich, Deputy Cogan received two ounces of marijuana from either Johnston or Roberts.

Thereafter, the deputies arrested the four young men. A search of Johnston's van uncovered two additional "bags" of marijuana. After the search, Roberts, Schlereth, and Johnston were formally arrested; appellant, however, was released. Some time after the initial arrests, all three young men implicated the appellant; Yaccich, therefore, swore out a criminal complaint charging appellant with unlawful delivery and arrested him on August 26, 1974.

Johnston testified that on August 1, he, Schlereth, and a third friend not involved in the case, rode to the "Ropes" area to go swimming. He gave an account of the incident different from that presented by the deputy:

"Q. Did you have occasion to talk with Officer Yaccich or the other sheriff deputies?

"A. No, sir.

"Q. Did you come in contact with them at all?

"A. Only Officer Cogan. He came over to the van and said hi and that was it.

[ 239 Pa. Super. Page 416]

"Q. Who was at the van at that time?

"A. Me and Kevin Roberts.

"Q. Did you have occasion to see this Defendant John Winters on that day?

"A. It was about 3:30, 4:00 after he had gotten off work from Flame Harding.

"Q. Where did you see him?

"A. At the Ropes.

"Q. At your van?

"A. At different occasions, yes. See, he was on foot and I wouldn't get out of the van. But he did come out of my van and then he had gone back over to where Mr. Yaccich and the other police were.

"Q. Well, did you have occasion to drive Winters anywhere that day?

"A. Yes, sir. I drove him down to Bridgewater . . . .

"Q. Where did you take Winters?

"A. Well, we went down Bridgewater and we drove up to Brady's Run Park and then we went back down into Bridgewater and we drove around for a while and he stopped off -- he wanted to stop at a trailer and we stopped there.

"Q. Do you know who owned the trailer?

"A. No, I don't . . . .

"Q. Did he leave the van -- your van?

"A. Yes, he did.

"Q. Did he have anything -- was he carrying anything?

"A. When he left? No . . . .

"Q. He left the trailer?

"A. Yes.

"Q. Where did he go?

"A. He come back into my van.

"Q. Was he carrying anything when he came ...

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