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filed: November 30, 1981.



May McNeill Greenwell, Philadelphia, for appellant.

Diane M. Devlin, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Montemuro, Hoffman and Van der Voort, JJ.

Author: Montemuro

[ 293 Pa. Super. Page 57]

This is an appeal from a Judgment of Sentence by the court below, sitting without a jury, for the crimes of possession,*fn1 possession with intent to deliver,*fn2 and delivery*fn3 of various controlled substances in violation of the Controlled Substance, Drug, Device and Cosmetic Act.*fn4 Appellant raises myraid contentions of error on appeal; however, for the reasons outlined below, we agree with appellant's contention that his trial counsel was ineffective. Therefore, we reverse and remand for a new trial on that basis without reaching appellant's other issues on the merits.*fn5

The facts of the case are as follows:*fn6

On April 10, 1979, one Detective Joseph Fehn of the Bristol Township Police Department was engaged in conducting a drug investigation together with officers of his and other police departments. He was the only witness for the Commonwealth at both the suppression hearing and the trial.*fn7 He testified that on the aforesaid date Officer Linda Cielinski was operating in an undercover capacity and had apparently made contact with one David DeWitt and arranged the purchase of one ounce of methamphetamine hydrochloride for approximately $1,300.00. He also testified

[ 293 Pa. Super. Page 58]

    that Cielinski had secured $1,300.00 from a special Bristol Township police fund and that the serial numbers on the various bills were duly recorded and retained by the police department.*fn8 At or about 7:00 o'clock P.M. that evening Cielinski met DeWitt at a lounge; at all relevant times Cielinski and DeWitt were under surveillance by Detective Fehn and other officers. After meeting DeWitt at the lounge, Cielinski and DeWitt proceeded in Cielinski's automobile to Ravine Lane in Bristol Township and parked on the street immediately opposite 44 Ravine Lane -- home of the appellant. Detective Fehn followed them to that location and continued past the spot where they had parked their motor vehicle; he parked in a driveway several houses down the street so that he could observe Cielinski's car, its occupants, and 44 Ravine Lane.

After Cielinski and DeWitt arrived at the aforedescribed location DeWitt exited the vehicle, leaving Cielinski in it, and entered the premises at 44 Ravine Lane. He remained inside approximately 10 or 15 minutes, then exited that residence and re-entered Cielinski's automobile. At that time he apparently delivered to Cielinski a clear plastic bag containing a white powder. Cielinski then allegedly gave him the sum of $1,150.00 of the recorded currency; DeWitt then left the motor vehicle and re-entered 44 Ravine Lane. Fehn then approached the Cielinski vehicle, spoke to Cielinski and was allegedly advised by her that she had received the clear plastic bag with the white powder and had given DeWitt the money.*fn9 Fehn then took the clear plastic bag with the white powder, returned to his own motor vehicle and conducted a field test there and determined that the white powder was methaphetamine hydrochloride. DeWitt then exited 44 Ravine Lane and was arrested at that time. A search of his person revealed that he had none of the money; he purportedly stated at that time to the officers

[ 293 Pa. Super. Page 59]

    that he had made the purchase in 44 Ravine Lane from the appellant.*fn10

Detective Fehn and various other officers then proceeded to the side door of the house leading from the driveway and the carport and knocked thereon. This was the door they had observed DeWitt enter and leave both times he had entered the house. Fehn testified that he knocked upon the door and immediately the door was opened by a young woman. Fehn identified himself and his companions as police officers and advised the young woman that he was there to conduct a drug investigation. The young lady identified herself as Terry Seltzer and stated that she was the owner of the premises. The officers then entered the premises and found a number of people in the room they entered (the kitchen) and others in the living room immediately adjacent thereto. They were all instructed to remain where they were while Fehn and several other officers proceeded to the second floor. On the second floor they proceeded to a door off of a hallway and found that it was locked. Fehn kicked the door down and entered that room, finding therein the appellant, together with two other parties. In the room Fehn observed a gram scale and a white powder upon a mirror. Each person in the room was asked to identify ...

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