No. 831 Philadelphia 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas of Delaware County, Criminal No. 719-81.
Thomas Q. Ciccone, Jr., Philadelphia, for appellant.
Helen T. Kane, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, President Judge, and Montemuro and Popovich, JJ.
This is an appeal from a judgment of sentence for possession of controlled substances, possession with intent to deliver and criminal conspiracy. Appellant and a co-defendant, Louis A. Moore, were tried by a jury and found guilty. Post-trial motions were filed and denied by the trial court. New counsel represents appellant on appeal. We have concluded that we must remand for an evidentiary hearing on whether trial counsel was ineffective.
The facts as stated by the trial court are as follows:
From January 23, 1981, until the early morning hours of January 31, 1981, the Pennsylvania State Police and other law enforcement officials conducted a surveillance of the Tunbridge Apartments in Middletown Township, Delaware County, Pennsylvania. (N.T. at 65). During the course of this surveillance the patterns of ingress and egress of occupants of Apartment D-204 were observed, which had been leased by Defendant Ronald Cimorose [appellant]. (N.T. at 8).
Defendant Cimorose was observed on January 23, 1981, carrying a large plastic bag from the apartment in question which he deposited in the communal trash dump in the apartment parking lot. (N.T. at 66). This trash was confiscated from the trash dump site and it was found to include methamphetamine residue.
Defendant Louis A. Moore was observed on a number of occasions in the parking lot of the apartment complex, opening the trunk to a black Ford Torino bearing a
Maryland registration and license No. AJR 435. He was observed removing undetermined objects from the trunk and then returning to the apartment in question. (N.T. at 66-68, 182, 184). On January 23, 1981, Defendant Cimorose was also observed at the black Torino from which he apparently removed something from the trunk and returned to Apartment D-204. (N.T. at 65).
Based upon their observations, police obtained a search warrant from the premises of Apartment D-204 which they executed at approximately 12:30 A.M. on January 31, 1981. A quantity of drugs, money and drug related paraphernalia were seized as a result of the search. (N.T. at 71-72, 115).
Defendant Cimorose was arrested along with five other individuals, included a Juvenile, Annette Williamson, present inside the apartment at that time. (N.T. at 107). Defendant Moore was arrested outside the apartment at approximately 12:45 A.M. (N.T. at 145).
As a result of the evidence seized during the search of the apartment, a second warrant was obtained for the black Torino which had remained in the parking lot throughout the surveillance period. (N.T. at 76). A quantity of methamphetamine weighing 1.79 pounds was found inside the trunk of the Ford Torino.*fn1 (N.T. at 61). Trial court slip opinion, at 2-3.
Appellant first argues that he was denied a fair trial because he was not aware of a court order that directed Annette Williamson to testify for the Commonwealth. The order in question was entered by a judge in Juvenile Court, and provided:
[appellant]. The said Order is to continue only during the course of the trial for the purpose of protecting the witness and shall terminate at the end of the trial of the [appellant]. The within Order is not to be filed until after termination of the trial.
Appellant's argument is that he should have been informed of this order "so that the same could be brought to the attention of the jury." Brief of appellant at 16. This argument is without merit, for the jury was aware of the circumstances in which Williamson testified. Thus, the following testimony was elicited from her:
Q. [Assistant District Attorney] Has the Commonwealth made any promises to you in exchange for ...