No. 581 April Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, Law, Lawrence County, at 258-258A-258B-258C-258D-258E-258F and 258G of 1977.
George P. Micacchione, Ellwood City, for appellant.
Howard C. Klebe, Assistant District Attorney, New Castle, for Commonwealth, appellee.
Cercone, President Judge, and Wieand and Hoffman, JJ.
[ 269 Pa. Super. Page 551]
Appellant contends that: 1) the evidence is insufficient to sustain the verdict; and 2) he was illegally arrested. We agree that the evidence is insufficient to sustain part of the verdict and that appellant was unlawfully arrested. Therefore, we discharge appellant on one count and vacate judgment of sentence on two counts. We otherwise affirm judgment of sentence.
On June 29, 1977, a court sitting without jury convicted appellant on the following charges: No. 258, possession of 1/4 pound of marijuana with intent to deliver; No. 258A, possession of 1/4 pound of marijuana; No. 258B, conspiracy to deliver 1/4 pound of marijuana; No. 258C, possession of three pounds of marijuana with intent to deliver; No. 258D, possession of three pounds of marijuana; No. 258E, conspiracy to deliver three pounds of marijuana; No. 258F, possession of 1/2 pound of marijuana with intent to deliver; and
[ 269 Pa. Super. Page 552]
No. 258G, possession of 1/2 pound of marijuana. After denying post-verdict motions, the trial court sentenced appellant to five concurrent terms of imprisonment of 2 1/2 to 5 years. This appeal followed. In a previous trial, appellant's alleged coconspirator had been found not guilty of conspiracy to deliver 1/4 pound of marijuana.
On January 3, 1977, the New Castle Township Police, Lawrence County, requested the Mercer County Narcotics Unit to assist in a drug investigation. The Mercer unit dispatched Dana Frankenburg and several other officers. Working undercover, Frankenburg and an informant met appellant at his home. Frankenburg said that he wanted to buy several pounds of marijuana and appellant invited him into the apartment. After a discussion, appellant said that he would go to the home of a friend named Kenny, pick up 3 to 5 pounds of marijuana and return in about an hour, when he would meet Frankenburg and the informant. When Frankenburg and the informant returned in the afternoon, appellant informed them that Kenny had not been home and he could sell only 1/4 pound of marijuana for $115.00. Frankenburg bought the marijuana, using marked bills. Appellant asked Frankenburg to return the next morning to complete the transaction.
In the morning, police officers observed appellant drive to a home in Shenango Township, Lawrence County, owned by Kenneth Anderson. He entered and soon came out with a red bag, which he took to his apartment. Frankenburg and the informant arrived at appellant's home about two hours later. Appellant told him that, because Frankenburg was late, he had returned the marijuana to Kenny's house. Frankenburg asked if he could still buy the marijuana and appellant invited the officer and the informant to accompany him to Kenny's for the sale. Frankenburg issued a radio report announcing that the sale would occur soon at the Anderson home.
While the 3 men drove to Kenny's, the New Castle police surrounded the Anderson home. Appellant parked in front of the house, entered ...