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COMMONWEALTH PENNSYLVANIA v. BLANCA MELENDEZ (03/30/84)

filed: March 30, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
BLANCA MELENDEZ, APPELLANT



No. 297 Harrisburg 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of York County at No. 73 CA 1982.

COUNSEL

William C. Anderson, York, for appellant.

Floyd Paul Jones, York, for Commonwealth, appellee.

Wickersham, Del Sole and Montemuro, JJ.

Author: Wickersham

[ 326 Pa. Super. Page 534]

This is an appeal from the judgment of sentence of the Court of Common Pleas of York County.

Appellant, Blanca Melendez, was charged with delivery of heroin and criminal conspiracy. Appellant was arrested on those charges in December, 1981. On March 25, 1982, appellant went to trial before a jury after her motion for a continuance was denied, and was convicted of both counts. She filed post-trial motions on April 2, 1982, which were denied on June 23, 1982. On July 26, 1982, appellant was sentenced to serve a term of imprisonment at the State Correctional Institution at Muncy for not less than two (2) nor more than four (4) years. Her subsequent motion for reconsideration of sentence was denied and this timely appeal followed.

Appellant raises four issues for our consideration:

I. Whether the Court should have granted Defendant's Motion for a Continuance.

II. Whether the Court should have either suppressed or granted other relief with respect to a statement allegedly given by Defendant because of the Commonwealth's failure to provide that statement to Defendant.

III. Whether the Court should have admitted two packages of heroin into evidence.

IV. Whether the Court should have given a jury instruction concerning police officer testimony.

Brief for Appellant at 3.

Appellant first argues that the court should have granted her motion for a continuance. This motion was made on March 24, 1982, the day before the trial was to begin. The court discussed the motion with counsel in chambers on that date, and took testimony on the motion the following day. The ground for the motion was that appellant was suffering from heroin detoxification at the time of trial. Appellant's counsel stated that she had been admitted to a drug rehabilitation

[ 326 Pa. Super. Page 535]

    center in York two days previous to trial. However, she left the center after only one day, and appellant's counsel stated that she was physically unable to testify to the best of her ability.

Appellant testified that she had been addicted to heroin for about two years; she had not had any heroin for two days; on the previous day (March 24, 1982) she was feeling sick to her stomach, was shaky, had the chills, and could not think very well. (N.T. at 7). However, when asked by her counsel about her condition on that day, the actual day of trial, she testified:

Q. And how were you feeling this morning?

A. Just nervous.

Q. In what way?

A. I am still shaky.

Q. Are you having trouble concentrating?

A. No.

Q. Are you having trouble understanding the proceeding?

A. I don't think so. I can understand.

Q. You are sure?

A. Yes.

N.T. at 7-8.

Upon cross-examination, she testified that she hadn't seen a doctor in the last three days and did not know if it was necessary. (N.T. at 8).

The court itself also questioned her:

Q. Do you understand -- did you understand the questions ...


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