No. 2767 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Pennsylvania, No. 3172-77
Jonathan DeYoung, King of Prussia, for appellant.
Colin Hannings, Assistant District Attorney, Lansdale, for Commonwealth, appellee.
Spaeth, Stranahan and Sugerman, JJ.*fn* Spaeth, J., concurred in the result.
[ 295 Pa. Super. Page 195]
This matter is on appeal from the Judgment of Sentence imposed on the appellant, John C. Minoske, by the Court of Common Pleas of Montgomery County following the appellant's conviction for possession of a controlled substance,*fn1 (marijuana), and possession of a controlled substance, (marijuana), with intent to deliver.*fn2 We remand for further considerations by the lower court.
[ 295 Pa. Super. Page 196]
At the appellant's trial, the following evidence was introduced: On August 19, 1977, Trooper Walter T. Zdunowski of The Pennsylvania State Police Force obtained a search warrant for the second story apartment at 205 Forrest Avenue in West Norriton township, Montgomery Co., Penna. A search of that apartment was conducted the same day.
The apartment had a kitchen, den, bathroom, living room and two bedrooms. In the first bedroom, the following items were found: various articles of men's clothing, a fake marijuana permit issued in the name of the appellant, a vehicle registration card in the appellant's name, an attache case containing several packets of marijuana and, in the closet, two paper bags containing several packets of marijuana and a box of plastic baggies. The combined weight of the marijuana found in this bedroom was approximately six pounds. In the other bedroom, Trooper Zdunowski found a triple beam balance scale and a check stub bearing the name of Wayne Roberts.
After the appellant's arrest, he told Trooper Zdunowski that he knew the marijuana was in the apartment and that it had been supplied by a man named Lavinski. The appellant did not admit, however, that the marijuana was his.
At trial, the appellant testified that the clothing and personal effects found in the bedroom containing the marijuana were his. The appellant also testified that he and Mr. Roberts shared the apartment with two women, Robin McNeil and Carin Honeychuck. The two witnesses called by the appellant at his trial both testified that Ms. McNeil and Ms. Honeychuck were residing at the apartment at the time the search took place.
During the search of the apartment, however, no women's clothing was found.
The appellant has raised six issues. Those issues are as follows:
I. The appellant contends that the evidence was insufficient to sustain the verdict in that the Commonwealth failed to prove that the appellant had constructive possession of the marijuana;
[ 295 Pa. Super. Page 197]
II. The appellant contends that the search warrant was defective in that the affiant, Trooper Zdunowski, made a knowing misstatement of a material fact when he obtained the warrant. Hence, the appellant argues, the lower court erred in failing to suppress the evidence obtained as a result of the search of the appellant's apartment;
III. The appellant contends that the judge presiding over the hearing on his motion to suppress was prejudiced against him when the Commonwealth brought to the judge's attention that there were other charges pending against the appellant. Hence, the appellant argues, the judge erred in refusing to disqualify himself;
IV. The appellant contends that the trial court judge was prejudiced against him because the judge had presided at a suppression hearing involving the alleged supplier of the marijuana, Mr. Lavinski. Hence, the appellant argues, the trial court judge erred in refusing to disqualify himself;
V. The appellant contends that the lower court erred in instructing the jury that "possession of a controlled substance is unlawful except in certain situations and that the burden of showing an exceptional situation is on the defendant"; and
VI. The appellant contends that the Commonwealth failed to exercise due diligence in attempting to bring him to trial within 180 days after the written complaint was filed as required by Pa.R.Crim.P. 1100. Hence, the appellant argues, the lower court erred ...