No. 1062 Pittsburgh, 1980, Appeal from the Sentence of the Court of Common Pleas, Criminal Division, of Westmoreland County, at Nos. 1462 and 1463 October Term, 1978.
Dante G. Bertani, Public Defender, Greensburg, for appellant.
Albert M. Nichols, District Attorney, Greensburg, for Commonwealth, appellee.
Spaeth, Hester and Watkins, JJ. Spaeth, J., files a dissenting opinion.
[ 311 Pa. Super. Page 438]
This is an appeal from the order of the Court of Common Pleas, Criminal Division, of Westmoreland County, by the defendant-appellant, Bradford Douglas Ritz, after the lower court denied his post-trial motions in arrest of judgment and for a new trial.
On September 26, 1978, the defendant was charged with two counts of possession with intent to deliver a controlled substance subsequent to 35 P.S. 780-113(30) as the result of a search of the defendant's home pursuant to a search warrant. On October 27, 1978, the defendant's counsel filed an Omnibus Pre-Trial Motion consisting of three motions:
[ 311 Pa. Super. Page 439]
A Motion to Suppress the Evidence; a Motion to Suppress Statements and a Motion for Return of Seized Property. On November 2, 1978, the Commonwealth filed its answer to these motions and after a lengthy evidentiary hearing and oral arguments on these motions, the lower court denied the motions in a written opinion. The defendant was tried on December 3, 1979 and found guilty. Posttrial motions were denied and the defendant sentenced to eleven and one-half to twenty-three (11 1/2 to 23) months imprisonment and two (2) years probation. This appeal followed.
On appeal, the appellant raises questions involving the sufficiency of the evidence and various errors by the court below in denying his Omnibus Pre-Trial Motions.
The pertinent facts of the case were adequately summarized by the court below as follows:
On September 7, 1978 at 9:45 P.M., Officers Joseph J. Marseli, of the Pennsylvania Bureau of Drug Control, and Ronald A. Veverka, of North Huntingdon Township Police Department, obtained two search warrants from District Justice Tubbs; one warrant was for 1219 Hahntown-Wendell Road, the residence of Bradford D. Ritz, and the other for 1289 Hahntown-Wendell Road, the residence of John Ritz, in North Huntingdon Township. Each search warrant contains an affidavit of probable cause identical to the other. The affiants' averment of facts in support of probable cause for the issuance of warrants is, in summary, that:
In August, 1977, information was received from an confidential informant that Douglas Ritz (of 1219 Hahntown-Wendell Road) was trafficking in marihuana and cocaine; that the informant had purchased marihuana and cocaine from Ritz, and had seen as much as sixty pounds of marihuana inside the Ritz home; that the marihuana was delivered to Douglas Ritz in a trailer (titled to Ritz's father, John A. Ritz); and, that ...