No. 636 April Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Allegheny County, at No. CC7604527A.
Lester G. Nauhaus, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
Price, Montemuro, and DiSalle, JJ. DiSalle, J., did not participate in the consideration or decision of this case.
[ 298 Pa. Super. Page 449]
This case is before the court on appeal from the entry of judgment of sentence. Appellant was convicted by a jury of Criminal Conspiracy and sentenced to five (5) years probation.
Appellant contends that the lower court erred in failing to consider an oral suppression motion which was raised at the time of trial. Alternatively, he argues that trial counsel was ineffective for failing to file the motion timely.*fn1
Appellant also contends that the admission of certain testimony of an alleged co-conspirator was reversible error
[ 298 Pa. Super. Page 450]
and that therefore a new trial should be ordered.*fn2 For the following reasons, we reverse.
The facts of the case are as follows:
Appellant and co-defendant Gales were arrested on December 13, 1974, after a search of their house produced certain controlled substance (drugs). A third co-defendant, Bundridge, was subsequently arrested. The Federal Drug Enforcement Administration agents conducted the search of the house at which time appellant and co-defendant Gales were arrested. The Federal charges were dismissed on May 26, 1976, after an assistant U. S. Attorney refused to provide defense counsel with a D. E. A. Form Seven (a record of the chain of custody of the drugs seized). State criminal proceedings were then initiated on June 17, 1976.
The alleged trial error that appellant raises relates to a discussion that D.E.A. agent Ramsey had with co-defendant Bundridge 13 days after the arrest of appellant and co-defendant Gales. Bundridge had not yet been arrested. In their discussion, Bundridge allegedly inculpated appellant in the conspiracy stating that appellant stored the drugs at his house for approximately $200.00 a month. Bundridge allegedly made these statements in an attempt to recover the drugs from agent Ramsey. Agent Ramsey, over the ...