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COMMONWEALTH PENNSYLVANIA v. RANDY S. KINKEAD (07/12/78)

decided: July 12, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
RANDY S. KINKEAD, APPELLANT



No. 7 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Centre County, at No. 881 of 1975.

COUNSEL

Alan Ellis, State College, for appellant.

Charles C. Brown, Jr., District Attorney, Bellefonte, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files an opinion in support of affirmance in which Cercone, J., joins. Price, J., concurs in the result. Spaeth, J., files an opinion in support of remand in which Jacobs, President Judge, and Hoffman, J., join. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 257 Pa. Super. Page 310]

The six Judges who decided this appeal being equally divided, the judgment of sentence is affirmed.

Opinion IN SUPPORT OF AFFIRMANCE

VAN der VOORT, Judge:

This is an appeal from a judgment of sentence following jury verdicts of guilty on charges of delivery of a controlled substance (marijuana) and possession with intent to deliver. Appellant contends that the judgment should be reversed and a new trial ordered because the trial court refused to suppress evidence obtained in the process of arresting appellant without a warrant and searching his home on a warrant which was allegedly defective. He advances the subordinate contentions that the testimony of a chemist that the controlled substance was in fact marijuana should have been stricken because not sufficiently established, and that the $10,000 fine imposed as part of his sentence is excessive. There is no merit in any of these contentions.

The facts as found by the trial judge at the suppression hearing are undisputed. An undercover drug agent of the Commonwealth, Thomas Gray, made friends with three individuals identified as Rick Maurone, Butch Molesky and Gary Scarpello, whom the agent believed to be involved in the

[ 257 Pa. Super. Page 311]

    drug traffic. He arranged with them to make a "buy" from the appellant, then unknown to him. The four proceeded in an automobile to a parking lot adjacent to a house at 248 East Prospect Avenue in St. College Borough. They arrived at 8:10 P.M. on October 29, 1975. The purchase involved 100 pounds of marijuana at a price of $12,000. In order not to be ripped off, Agent Gray sent Maurone and Molesky into the house with $1,000 of marked bills on the understanding that they would bring out half of the marijuana and then return to the house with the balance of the money to complete the transaction. Molesky and Maurone were watched by Agent Gray and Scarpello until they entered the house. Scarpello advised Agent Gray where they were in the house when a light was turned on on the second floor. Molesky and Maurone returned with several large bags of marijuana which were placed in the trunk of Agent Gray's car. He immediately arrested Maurone, Molesky and Scarpello. He then directed two law enforcement officers who were standing close by to secure the premises at 248 East Prospect Avenue. As they proceeded to do so, they were joined by three other law enforcement agents identified as Kerr, Stevens and Britt. As they ascended the front porch, one of the occupants of the house was standing on the porch and the front door was wide open. They entered the house without force and collected all of the occupants, four or five in number, including the appellant, and asked them to remain seated in the living room.

From the information received by Agent Gray from Molesky, Maurone and Scarpello, the appellant was identified as the seller, placed under arrest and given his Miranda warnings. He admitted his participation in the offense and ...


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