No. 2423 October Term 1978, Appeal of Raymond Joseph Moretti from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Schuylkill County, to No. 124 March Term, 1977.
Bruce S. Miller, Hazleton, for appellant.
Richard B. Russell, District Attorney, Pottsville, for Commonwealth, appellee.
Brosky, Wickersham and Eagen, JJ.*fn*
[ 280 Pa. Super. Page 168]
On January 6, 1977, appellant, Raymond Joseph Moretti, was arrested on a complaint brought by Trooper Peter Zuber of the Pennsylvania State Police charging Moretti with possession of a controlled substance and possession with intent to deliver a controlled substance.*fn1 Specifically, Moretti was charged with possessing, having under his control and intending to deliver a controlled substance, to wit, approximately thirty pounds of marijuana, a Schedule I drug, not being registered or permitted or allowed to have in his possession such controlled substance.
[ 280 Pa. Super. Page 169]
On January 4, 1978, a jury trial was held before the Honorable Donald D. Dolbin in the Court of Common Pleas of Schuylkill County with Bruce Miller, Esquire, representing the defendant. The jury returned a verdict of guilty as to both charges on January 6, 1978, following which a motion for new trial and in arrest of judgment was filed on behalf of the defendant and subsequently argued. Judge Dolbin, after hearing, denied the post-verdict motions and on August 21, 1978, sentenced the defendant to undergo imprisonment in the Schuylkill County Prison for a period of not less than one year nor more than three years. Notice of appeal was duly filed to the Superior Court of Pennsylvania by appellant's trial counsel who raises five issues before this court.*fn2
[ 280 Pa. Super. Page 170]
At trial, Trooper Peter Zuber testified on behalf of the Commonwealth that he was a member of Troop L Vice Squad of the Pennsylvania State Police assigned to investigate drug complaints in Schuylkill County and had eighteen years experience as a police officer and five years experience in Schuylkill County. He had conducted more than three hundred investigations. Shortly after midnight on January 6, 1977, he met with other members of the state police at the Frackville Barracks. From there they went to Magistrate Richards' office to obtain a search warrant for a premises located on South Kennedy Drive in McAdoo Borough, a second-floor apartment. He had information from a Pennsylvania State Trooper named Long that the address was the residency of appellant, Moretti. After announcing their presence, the door was opened and Trooper Zuber and other officers entered the apartment. The search warrant was read to Mr. Moretti and he was advised of his rights (Miranda Warnings).
In a closet in the kitchen of the appellant's apartment the officer found three bricks containing vegetable matter which he presumed to be marijuana along with other paraphernalia. The defendant, Moretti, told the police officer that he rented or leased the Dog House Restaurant downstairs and also leased the apartment where the search was conducted. Subsequent testing at the Pennsylvania State Police Crime Lab proved the seized material to be marijuana packaged in Kilo bricks weighing 2.2 pounds each. Commonwealth witnesses, experienced in drug investigations, testified that in their opinion no individual would have the amount of marijuana that was found in the apartment for one's own personal use but rather would be delivering the same, that is selling the same, to others. For example, Corporal Marinetti testified that on an average, one gram of marijuana would be used in making one cigarette. Further
[ 280 Pa. Super. Page 171]
that one could make between twenty to twenty-five cigarettes from an ounce of marijuana. (N.T. 71). Witness Marinetti further testified that the particular type of marijuana seized on January 6, 1977, in his opinion, was probably Columbian which was bringing $40 an ounce at the time. (N.T. 89). Witness Michael Horvath of the Pennsylvania State Police Crime Laboratory in Bethlehem testified that he had examined the material, declared it to be marijuana and identified various exhibits at trial. Exhibit 2, ...