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COMMONWEALTH PENNSYLVANIA v. MICHAEL A. DE GEORGE (08/19/83)

filed: August 19, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL A. DE GEORGE, APPELLANT



No. 382 Pittsburgh, 1980, Appeal from the Judgment of Sentence, April 25, 1980, Court of Common Pleas, Erie County, Criminal Division, Nos. 2257 & 2258 of 1977.

COUNSEL

William F. Cercone, Jr., Pittsburgh, for appellant.

Shad Connelly, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Spaeth, Brosky and Johnson, JJ.

Author: Johnson

[ 319 Pa. Super. Page 247]

Appellant was convicted in a non-jury trial of possession with intent to deliver a controlled substance, and criminal conspiracy. Post-trial motions were filed and denied. He was sentenced to a term of imprisonment of two to four years to be followed by a consecutive five year period of probation. He here appeals from the judgment of sentence.*fn1 As we find merit in one of appellant's claims of trial counsel's ineffectiveness, we must reverse the judgment of sentence and remand for a new trial. Procedurally we are also required to review claims pertaining to the pre-trial suppression of evidence and the delay in imposition of sentence.

Appellant first complains that the suppression court erred in not suppressing evidence seized pursuant to a warrant when the police failed to sign the return for several days and delayed three or four days before verifying it before the issuing authority.

At the time in question, Rule 2009(a), Pa.R.Crim.P. provided as follows:

An inventory of the items seized shall be made by the law enforcement officer serving a search warrant. The inventory shall be made in the presence of the person from whose possession or premises the property was taken, when feasible, or otherwise in the presence of at least one witness. The inventory shall be verified by said officer.

Appellant argues that the failure to abide by the rule "undermines the credibility of the return" necessitating the suppression of the inventoried evidence.

In Commonwealth v. Walls, 255 Pa. Super. 1, 386 A.2d 105 (1978) and Commonwealth v. Jones, 245 Pa. Super. 487, 369 A.2d 733 (1977) this court held that it was without authority to impose such sanctions upon the Commonwealth for its omissions pertaining to Rule 2009(a). Such authority rested with the Supreme Court. In light of Walls and

[ 319 Pa. Super. Page 248]

    suppression court to weigh the credibility of the witnesses and determine what weight to give to their testimony. Commonwealth v. Reynolds, 300 Pa. Super. 143, 446 A.2d 270 (1982); ...


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