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COMMONWEALTH PENNSYLVANIA v. CHARLES FLECK (02/03/84)

filed: February 3, 1984.

COMMONWEALTH OF PENNSYLVANIA,
v.
CHARLES FLECK, APPELLANT



No. 19 Harrisburg, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Dauphin County, No. 989 C.D. 1981.

COUNSEL

Joshua D. Lock, Harrisburg, for appellant.

William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

Wickersham, Wieand and Cercone, JJ.

Author: Wieand

[ 324 Pa. Super. Page 231]

Charles Fleck was tried non-jury and was found guilty of possession of marijuana with intent to deliver.*fn1 On direct appeal from the judgment of sentence, Fleck contends (1) that the evidence was insufficient to sustain the verdict; (2) that an inculpatory statement made by him to the police was involuntary; (3) that physical evidence seized from his apartment should have been suppressed; and (4) that the trial court erred in disallowing cross-examination of police officers regarding an informant against appellant in a separate case. These contentions have no merit and, accordingly, we affirm.

State police acquired information from an informant that property taken during a burglary could be found in appellant's apartment at 4939 Eastman Drive, Lower Paxton Township, Dauphin County. The police prepared an affidavit for a search warrant in which the informant was identified as a participant in the burglary who had delivered some of the stolen property to appellant's apartment. When the police arrived at the apartment with a search warrant, they found appellant's girl friend, Susan Hocker, in residency. During the search for stolen property the police found marijuana on a scale in the kitchen and in a handbag. They also found approximately ten pounds of marijuana in a large, canvas gym bag on the floor of the bedroom which was being shared by appellant and Susan Hocker. When appellant returned to his apartment shortly thereafter, he was advised of his Miranda rights. He denied ownership of the gym bag. He made inculpatory statements regarding stolen property found in the apartment, however, and was placed under arrest. While being transported between the state police barracks and the office of the arraigning magistrate, appellant was asked again about the gym bag, and he was told that the police would deem items found inside the apartment to have been in the joint control of

[ 324 Pa. Super. Page 232]

    both Fleck and his girl friend. Appellant then told police that the marijuana found in the gym bag and also that in Hocker's handbag belonged to him.

Evidence that marijuana was found in appellant's apartment, together with his admission that it belonged to him, was sufficient to prove appellant's possession of marijuana. The circumstances under which it was found and the quantity thereof were sufficient to permit an inference that appellant intended to deliver some or all of the marijuana to other persons and did not intend it solely for personal use. See: Commonwealth v. Bowermaster, 297 Pa. Super. 444, 453, 444 A.2d 115, 119 (1982); Commonwealth v. Harmes, 255 Pa. Super. 147, 151, 386 A.2d 551, 552 (1978).

Before the Commonwealth could make use of the inculpatory statement made by appellant while in police custody, it was required to prove by a preponderance of the evidence that the statement was voluntary. Commonwealth v. Bullard, 465 Pa. 341, 346, 350 A.2d 797, 799 (1976); Commonwealth v. Reynolds, 300 Pa. Super. 143, 146, 446 A.2d 270, 272 (1982). "[T]he ultimate test for voluntariness is whether the confession is the product of an essentially free and unconstrained choice by its maker." Commonwealth v. Smith, 470 Pa. 220, 225, 368 A.2d 272, 275 (1977), quoting Commonwealth v. Alston, 456 Pa. 128, 133, 317 A.2d 241, 243 (1974). Accord: Commonwealth v. Betrand, 484 Pa. 511, 518, 399 A.2d 682, 686 (1979). "An evaluation seeking to determine whether a confession is voluntary must consider the totality of the circumstances." Commonwealth v. Betrand, supra, 484 Pa. at 519, 399 A.2d at 686. All circumstances "which may serve to drain one's power of resistance to suggestion and undermine his self-determination" must be considered. Commonwealth v. Betrand, supra. "When the question of voluntariness passes beyond the realm of physical coercion and into degrees of psychological coercion, most careful attention will be afforded to any facts, circumstances or events tending to overbear the will of the accused." Commonwealth v. Smith, supra 470 Pa. at 225-226, 368 A.2d at 275,

[ 324 Pa. Super. Page 233]

    quoting Commonwealth v. Alston, supra 456 Pa. at 134, 317 A.2d at 244. Accord: Commonwealth v. Kichline, 468 Pa. ...


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