decided: April 13, 1978.
COMMONWEALTH OF PENNSYLVANIA
JEFFREY CHARLES HARMES, APPELLANT
George E. Goldstein, Philadelphia, for appellant.
John A. Kenneff, Assistant District Attorney, and D. Richard Eckman, District Attorney, Lancaster, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 255 Pa. Super. Page 151]
Appellant was convicted of possession of marijuana with intent to deliver. 35 P.S. § 780-113(a)(30). He raises five assignments of error.
-- 1 --
Appellant argues that there was not sufficient evidence to support a finding of intent to deliver, in that there was no testimony as to the amount of marijuana found in his possession. The trial transcript reveals that seven plastic bags of marijuana were introduced into evidence, but there is no description of their size or weight. However, appellant's motion to suppress averred that the evidence seized from appellant was "seven pounds of marijuana."
Appellant also argues that quantity of marijuana alone is not sufficient to prove intent to deliver. We held otherwise in Commonwealth v. Cubler, 236 Pa. Super. 614, 346 A.2d 814 (1975). The seven pounds possessed by appellant was 3200 grams -- over one hundred times the 30 grams specified by statute to be considered a "small amount for personal use." 35 P.S. § 780-113(a)(31). Cf. Commonwealth v. Wright, 234 Pa. Super. 83, 339 A.2d 103 (1975) (Dissenting Opinion by Hoffman, J.) (twenty-five bags of heroin -- a heavy user's one-day supply -- not sufficient to support inference of intent to deliver). Cases under the federal statute similar to our statute, 21 U.S.C.A. § 841(a), allow the inference of intent to deliver to be drawn from a quantity that is more likely than not to be consistent with trafficking in drugs than with personal use. See, e.g., United States v. Mather, 465 F.2d 1035 (5th Cir. 1972). Here, we hold that the lower court as fact finder could permissibly infer intent to deliver from appellant's possession of 112 ounces of marijuana.
-- 2 --
Appellant argues that his waiver of jury trial was not knowing and intelligent because the lower court did not hold an on-the-record colloquy in conformance with Pa.R.Crim.P.
[ 255 Pa. Super. Page 1521101]
. However, in Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973), the Supreme Court declined to make a per se prophylactic rule reversing convictions for failure to comply with Rule 1101, and held instead that there could be adequate substitutes for the colloquy. In Williams the substitute was a subsequent PCHA hearing at which the defendant testified that he knew what a jury was and that he could have a jury trial if he wanted one. On the particular facts of Williams the Court found the subsequent hearing inadequate because it did not indicate that the defendant knew the essential ingredients of a jury trial.
Here, after a jury had been selected, defense counsel stated that appellant wished to waive jury trial. Appellant then signed a written waiver form, which read:
AND NOW, Sept. 19, 1974, comes the defendant and pleads not guilty and with the consent of his attorney, and the attorney for the Commonwealth and the approval of the judge, waives a jury trial and elects to be tried by a judge without a jury, fully understanding that if he were tried by a jury:
1. the jury would be chosen from members of the community thereby producing a jury of his peers,
2. that any verdict rendered by a jury must be unanimous and,
3. that he would be permitted to participate in the selection of a jury panel.
From this record we can conclude, first that appellant knew he had a right to a jury trial, because a jury had already been chosen, and second that he "knew the essential ingredients of a jury trial which are necessary to understand the significance of the right he was waiving," Commonwealth v. Williams, supra, 454 Pa. at 373, 312 A.2d at 600, because he signed a form that set forth those ingredients. In a later case we may find that a written waiver does not conclusively prove that the waiver was knowing and intelligent; if an appellant claims that he did not understand the waiver form he signed, an evidentiary hearing may be necessary. This is so because a written form is not as
[ 255 Pa. Super. Page 153]
informative as a colloquy, in that it does not elicit a response from the signer. Here, however, appellant does not assert that he did not understand the form. He relies only on the lack of colloquy. Since the record on the waiver is not "silent," the burden is on appellant to establish that his waiver was not knowing and intelligent. See Commonwealth v. Coleman, 230 Pa. Super. 1, 326 A.2d 568 (1974). He has not carried this burden.
-- 3 --
Appellant argues that his suppression motion should have been granted, on three theories.*fn1
The search that produced the evidence against appellant was made pursuant to a warrant. We reproduce here the relevant portions of the supporting affidavit:
[ 255 Pa. Super. Page 154]
First, appellant argues that the warrant does not authorize the search of the suitcase in which the evidence against him was found. We disagree. The narrative recounts that appellant was seen arriving with a suitcase with airline tags on it, and that the investigating officer believed that appellant had marijuana "on his possession." A common-sense reading of this affidavit is that the issuing authority, finding probable cause for a search of appellant and
[ 255 Pa. Super. Page 155]
his "possession," authorized a search of the suitcase. The suitcase was "described with particularity in the warrant." Commonwealth v. Searles, 450 Pa. 384, 388, 302 A.2d 335, 337 (1973).
Second, appellant argues that the reliability of the informant described in the affidavit was not sufficiently proved by the facts narrated. We disagree. At least two of the factors set forth in Commonwealth v. Ambers, 225 Pa. Super. 381, 310 A.2d 347 (1973), are present here: the informant gave prior reliable information, and the defendant's reputation supported the informant's tip.
Third, appellant argues that the first prong of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1974), was not met here, in that the "facts sufficient to enable the issuing authority to [judge] that the informant had knowledge of sufficient facts to conclude that the suspect was engaged in criminal activity," Commonwealth v. Kline, 234 Pa. Super. 12, 16, 335 A.2d 361, 363 (1975), were based in part on facts gained from another, unidentified informant whose reliability was in no way shown. Appellant cites Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972):
The requirement of a determination of the trustworthiness of the source of the information cannot be met solely because it is channeled through an informant known to be reliable. While it may properly be assumed that the informant passed upon the reliability of the third person supplying the information to him, the law makes it most clear that it is not his judgment to make.
Id., 448 Pa. at 263-4, 293 A.2d at 36.
However, in Garvin the reliable informant acted only as a conduit for all the information on which the affiant relied for the arrest of Garvin.*fn2 Here the reliable informant told the affiant that "he was present when some of the arrangements were made," and that it was only the "final arrangements
[ 255 Pa. Super. Page 156]
for the pickup and trip" that came from the second, untested informant. Furthermore, the details recounted by the reliable informant were verified by the affiant's own surveillance. See Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). There was no violation of appellant's Fourth Amendment rights.
-- 4 --
By stipulation of defense counsel, the testimony from the suppression hearing was incorporated into the trial testimony. Appellant contends that this procedure denied him due process of law and his right to confront witnesses. This argument has no merit: appellant had full opportunity to confront the witness who testified at the suppression hearing and whose testimony was thereafter incorporated into the trial testimony. No doubt appellant's real complaint, which he vaguely suggests in his brief, is that his counsel was ineffective in failing to ask the suppression judge to refer the bench trial to another judge. However, we cannot find ineffectiveness on this basis alone. As the trial judge notes in his opinion, "there is nothing in the record of this case that was 'of a sufficient inflammatory nature to arouse a prejudice against the defendant' [ Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652 (1973)] that could have influenced the Court's actions." Lower Court Opinion at 6. We agree; therefore, assuming that the court would have denied the motion for recusation, we would not have found error. Appellant refers to "inadmissible testimony," but we cannot see that any of this testimony produced the verdict of guilty. Appellant was found guilty because he was proved to be in possession of seven pounds of marijuana.
-- 5 --
Appellant argues that counsel was ineffective in not asking for a different judge because the trial judge had previously presided over appellant's guilty plea on a drug possession charge. True it is that the prior conviction was inadmissible as proof of guilt on the present charge, but that
[ 255 Pa. Super. Page 157]
the judge probably remembered the plea and thus the prior conviction was in a sense in evidence. However, we find this claim without "arguable merit," Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); once the suppression motion was denied the case against appellant was complete. We are satisfied that the trial judge found appellant guilty as charged on the basis of his possession of seven pounds of marijuana, not on the basis of his prior conviction.