No. 581 April Term, 1976, Appeal from the Judgment of Sentence dated March 5, 1976 of the Court of Common Pleas, Criminal Division, of Clarion County, at No. 32 Criminal 1975.
William J. Rundorff, Sharon, for appellant.
Phillip L. Wein, District Attorney, Clarion, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files an opinion in support of affirmance, in which Jacobs, President Judge, and Van der Voort, J., join. Cercone, J., files a concurring and dissenting opinion, in which Hoffman and Spaeth, JJ., join. Watkins, former President Judge, did not participate in the consideration or decision of this case.
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The six Judges who decided this case being equally divided as to the Judgment of Sentence, the Judgment of Sentence is affirmed.
Opinion IN SUPPORT OF AFFIRMANCE.
Following a jury trial on May 29, 1975, appellant was convicted of delivering marijuana in violation of The Controlled Substance, Drug, Device and Cosmetic Act.*fn1 Motions for a new trial and in arrest of judgment were filed and
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denied. On March 5, 1976, appellant was sentenced to pay the costs of prosecution and a fine of $350.00 and to serve not less than 5 1/2 months nor more than 23 months in the Clarion County Jail. Five alleged points of error are raised in this appeal. After examining the record, we find appellant's contentions unpersuasive and would affirm the judgment of sentence.
Appellant first claims that the court below erred in denying his motion to suppress evidence. A review of the facts leading to the instant prosecution is necessary for proper consideration of this issue. On October 4, 1974, Jerry DeMarco sold a "lid" of marijuana to Bruce Burke. Unknown to DeMarco, Burke was acting as an agent for Corporal Lees of the Pennsylvania State Police. Burke took the marijuana to Corporal Lees, who subsequently interviewed and arrested DeMarco. DeMarco informed Corporal Lees that he had obtained the marijuana from appellant and had also turned over the money from the sale to appellant. On December 19, 1974, Corporal Lees telephoned appellant and told him that he "was interested in talking to him about a sale of marijuana that occurred at Forest Manor, Clarion Borough, Clarion County." (NTS 15). At Corporal Lees' request, appellant came to the State Police Barracks to discuss the matter. Lees informed appellant that formal charges were going to be filed against him, although "[w]e actually didn't discuss that specific charge that was facing him at the time, in the sense of whether he was guilty or not guilty of that particular violation." (NTS 8).
At this time, Corporal Lees gave appellant his Miranda warnings and appellant signed a waiver form. Lee then informed appellant that "I was interested in other sources of drugs that as on past occasions I was always interested in going further down the line to get major dealers who were bringing drugs into the area and I was interested in anybody that could be instrumental in getting us to those sources." (NTS 8). The two discussed the possibility of appellant arranging a "deal" or a buy and appellant asked "if it were possible to hold off on the charge and he indicated he could
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take me to much bigger sources." (NTS 8). Appellant's ostensible desire to cooperate was rooted in self-interest. He hoped to have the charge against him reduced from the felony of delivery of marijuana to the misdemeanor of possession of a small amount. The nature of appellant's expectation in this regard is a matter of some dispute. Corporal Lees testified that he told appellant that such a reduction in charges had occurred in some prior cases where defendants had cooperated. According to Lees, however, he emphasized that he could not guarantee the ultimate disposition of appellant's case. Appellant made no confessions or statements at this first meeting, but he indicated a willingness to cooperate and an intent to set up a big "deal" as soon as possible. He was to contact Corporal Lees upon receiving any information or making arrangements for a buy.
Shortly after the December 19 meeting, appellant left the college campus to spend Christmas vacation at his home. Sometime between December 20, 1974, and January 15, 1975, Corporal Lees called appellant at home to ascertain if there had been any developments. Appellant had nothing to report. At some point between January 15 and February 5, 1975, Corporal Lees once again telephoned appellant, this time at his college dormitory, to inquire why appellant had not contacted him about the promised buy. Appellant stated that he would try to arrange something for that weekend, but, as before, no results were forthcoming.
On February 5, 1975, Corporal Lees called appellant at his dormitory informing him that formal charges had been lodged against him and instructing him to appear that day at the district magistrate's office in Clarion for a preliminary arraignment. Lees and appellant met in the hall outside the magistrate's office. The officer again gave appellant the Miranda warnings and read the arrest warrant to him. Lees asked appellant if he still wanted to make a "deal" (a purchase of drugs), and appellant replied that he was still interested. The arraignment followed, and the magistrate once more informed appellant of his constitutional rights, read the arrest warrant to him and informed him
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of his right to a preliminary hearing. Appellant signed a written waiver of a preliminary hearing, but the waiver was subsequently permitted to be withdrawn and a preliminary hearing was held on February 20, 1975.
After the arraignment, Corporal Lees took appellant to the state police barracks at Shippenville where he was fingerprinted and photographed. Another conversation in regard to a possible buy ensued, which Corporal Lees, at trial, described as follows:
Question: At that time did you ask the Defendant about the source of drugs involved in this case?
Answer: Yes, sir. He indicated that things were dry and meaning that there was a chance of something coming up, but things were dry right at the time and he just couldn't make contact and I indicated that things might be slow on drugs or anything at the time but I said, 'We do have the stuff that you allegedly sold in this particular case.' And I said, 'We can make a case from that. Where did that come from?' And he indicated that stuff he got from a William Rogers at Penn State and I asked about trying to get that source of drugs, so he would be able to find out where that source of drugs came from and he indicated -- we discussed about him taking an undercover agent or somebody up to Penn State and making a buy from William Rogers. He indicated he had gone up and that is where he got the stuff from he sold in this case.
Question: How definite was he that that was the same marijuana he had sold in this case.
Answer: That definite. Just that he said that is where it came from. (NT 57).
Appellant urges that the court below erred in refusing to suppress any testimony in regard to the above-mentioned statements because they were involuntary. It is asserted that appellant made the statements in reliance upon Corporal Lees' representations that if he [appellant] cooperated the charge against him would be ...