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COMMONWEALTH PENNSYLVANIA v. JEFFREY CHARLES HARMES (04/13/78)

decided: April 13, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
JEFFREY CHARLES HARMES, APPELLANT



COUNSEL

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.

Author: Spaeth

[ 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 ...


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