No. 319 April Term, 1976, Appeal from the Order of November i6, 1975, of the Court of Common Pleas of Crawford County, Criminal, at No. 249 of 1974.
Donald E. Lewis, Assistant District Attorney, and Ballard F. Smith, Jr., District Attorney, Meadville, for Commonwealth, appellant.
R. Charles Thomas, Meadville, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., concurs in the result. Cercone, J., dissents. Watkins, former President Judge, did not participate in the consideration or decision of this case.
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Following a jury trial on October 30, 1974, appellee was convicted of conspiracy*fn1 and delivery of a controlled substance.*fn2 Motions for a new trial and in arrest of judgment were filed and argued March 7, 1975. Reargument was granted and held September 22, 1975. On November 26, 1975, the lower court granted a new trial on the conspiracy conviction and granted arrest of judgment and discharged appellee on the delivery charge. The Commonwealth has appealed from that disposition. We reverse the order of the court below, reinstate the guilty verdicts and remand for sentencing.
We initially note that the Commonwealth's appeal in this case is properly before us. The question presented is purely one of law, see Commonwealth v. Blevins, 453 Pa. 481,
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A.2d 421 (1973), and the lower court's order would terminate prosecution on the delivery charge. See Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963); Commonwealth v. Deren, 233 Pa. Super. 373, 337 A.2d 600 (1975).
The issue presented in this appeal is whether appellant has standing to challenge an illegal search which resulted in the seizure of a quantity of marijuana which was introduced as evidence against him at trial. Two other prosecutions stemmed from the seizure of the marijuana: Commonwealth v. Robosson, No. 248 of 1974 and Commonwealth v. Friedlich, No. 247 of 1974.*fn3 Robosson and Friedlich were convicted of possession with intent to deliver and simple possession respectively. These convictions were reversed by Judge F. Joseph Thomas, who found the search warrant which uncovered the marijuana to be defective in that the affidavit in support of its issuance failed to provide probable cause. The lower court in the instant case found that appellant had standing to assert the illegality of the search, that suppression of the marijuana was thus required, and that suppression dictated the previously mentioned disposition.
The factual background of this matter is as follows. In April of 1974 appellee transported approximately four pounds of marijuana from State College, Pennsylvania, to the campus of Allegheny College at Meadville, Pennsylvania. Prior to appellee's arrival, local police had been alerted that some marijuana was to be brought onto the campus. John Michael Spanogians and Joseph Alan Wos, named as co-conspirators in the indictment against appellee, became aware that the police had been warned of the impending delivery. This led to considerable controversy, upon appellee's arrival at Allegheny, as to where the marijuana should be temporarily secreted. The immediate solution to this dilemma was a hall closet in Baldwin Hall, a dormitory on the college campus, where the cache was kept until Friday, April 18. That night, the marijuana was removed from the closet by two other students and taken to a location near Robertson
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Field, a recreation area belonging to the college. On Saturday, April 19, the marijuana was returned to a location on the campus. A search pursuant to a warrant of the room of Donald Friedlich in Edwards House, on the Allegheny campus, was conducted on Tuesday, April 23, 1974. The marijuana produced by that search was introduced at appellee's trial. ...