No. 11 April Term 1978, Appeal from Judgment of Sentence in the Criminal Div., of the Court of Common Pleas of Allegheny County, Pa., at No. CC7604055.
Stephen J. Zivic, Pittsburgh, for appellant.
Charles W. Johns, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hester, J., files a dissenting statement. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision in this case.
[ 264 Pa. Super. Page 392]
This is an appeal from a sentence of three to twenty-three months in prison and a $500 fine for possession of marijuana*fn1 and a concurrent sentence of three to twenty three months in prison for possession of liquid hashish.*fn2
On May 10, 1976, police officers in Pittsburgh arrested appellant after they had searched his home and discovered controlled substances there. The search occurred pursuant to a warrant issued on the same day. The affidavit in support of the warrant stated:
[ 264 Pa. Super. Page 393]
Received information from a reliable informant who has proved reliable in the past which resulted to the arrest and seizures of narcotics and dangerous drugs, that Al Herman [ sic ] at 916 Valonia St., is concealing and selling narcotics from this residence. This informant with an acquaintance enter this residence in the week of May 7 to 9, 1976 and this acquaintnace [ sic ] bought from Al several bags of marihuana. This informant stated that pills and tablets were observed at this time in vials and were offered for sale by Al but were refused by this acquaintance. This informant has proven reliable in the past which resulted to the arrest of Richard Caputo at 1532 Methyl St., on 3/17/75 were [ sic ] marihuana and dangerous drugs were seized, and to the arrest of James Frena at 5435 Claybourne St., on 4/22/75 were [ sic ] marihuana was seized.
Appellant's motion to suppress the evidence seized as a result of the search was denied. He was subsequently convicted by a jury of possession of marijuana and liquid hashish, but was acquitted of possession of marijuana with intent to manufacture or deliver it. At the sentencing hearing, the presiding judge made the following comments:
THE COURT: Now, the testimony in the case that I tried indicated that the defendant had in his home one and a half pounds of Marijuana and Liquid Hashish. As I remember the testimony, and I think I'm correct, there was also a scale in his home. That was part of the evidence which indicates to the Court that this man was probably dealing.
MR. ZIVIC: Your Honor, I would have to ...