Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Centre County, at No. 265 of 1974. NO. 1371 OCTOBER TERM, 1975.
William F. Donovan, State College, for appellant.
C. Kent Price, Asst. Dist. Atty., State College, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Hoffman, J., files a dissenting opinion in which Spaeth, J., joins.
[ 242 Pa. Super. Page 234]
Appeal is taken to our Court from judgment of sentence rendered following a September 5, 1974, trial before Judge R. Paul Campbell, without a jury. Appellant had been arrested, charged with, and indicted for violation of "The Controlled Substance, Drug, Device and Cosmetic Act", section 13(a)(30).*fn1 A motion to suppress evidence of criminality seized prior to arrest had been filed and denied prior to trial. Appellant was adjudged guilty and sentenced to pay costs and a fine of $2,500.00 and to undergo
[ 242 Pa. Super. Page 235]
imprisonment in the Centre County jail for not less than one nor more than twenty-three months.
The facts show that on or about November of 1972, Miss Minnie Bubb rented a portion of her house to a Mr. and Mrs. Robert Hinds, who are her niece and husband. The lease was oral, in an amount of $100.00 per month including utilities. It is both her and Mr. Hinds' uncontradicted testimony that Miss Bubb permitted the Hinds the use of her nearby barn, but that such was gratuitous only and not a part of the lease. In fact, the Hinds as well as others had gratuitously made use of this barn before November of 1972.
Mr. Hinds testified to an arrangement between him and appellant whereby Hinds permitted appellant use of the loft of the barn for storage of certain bulk items, and was paid $75.00 per shipment. It was Hinds' permission alone under which appellant operated.
On or about July of 1973, Miss Bubb, having noticed strangers in and about the barn but making no inquiry, went to the immediate vicinity of that building and spotted a quantity of greenish "weeds". Subsequently, with her sister, she entered the barn, found a paper bag of these "weeds", and called the State Police. Miss Bubb gave her permission to the State Police for them to search the barn, wherein 76 pounds of marijuana (later proved to be so) was found in seven cartons and two footlockers. Other material used in the curing and packaging of marijuana was found and seized.
Appellant now argues that the warrantless search of the barn and consequent seizure should be proscribed for the reason that his permission to use the barn came from a lessee of the structure, which lessee had an expectation that his use of the building would be protected from warrantless searches. Appellant argues that his rights, as well as interest to contest the search and seizure, stem from ...