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COMMONWEALTH PENNSYLVANIA v. GORDON L. GRAHAM (09/28/84)

filed: September 28, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
GORDON L. GRAHAM, APPELLANT



No. 699 Pittsburgh 1982, Appeal from the Order of the Court of Common Pleas of Cambria County, Criminal Division at No. 1982-0097 A, B, C, 0098 and 0099.

COUNSEL

Russell J. Heiple, Johnstown, for appellant.

Dennis M. McGlynn, Assistant District Attorney, Ebensburg, for Commonwealth, appellee.

Cavanaugh, Popovich and Hester, JJ.

Author: Popovich

[ 334 Pa. Super. Page 173]

This case involves two appeals. The first is from the judgments of sentence for possession with intent to deliver marijuana (2 1/2 to 5 years), possession of LSD (6 months to 1 year), possession of a prohibited offensive weapon (2 to 5 years), receiving stolen property (2 to 5 years) and two (2) counts of making false reports to law enforcement officials (6 months to 1 year for each count). All sentences were ordered to be served consecutively. The second appeal is from the order holding that the $30,717 seized from the appellant's, Gordon Graham's, residence was "derivative contraband", and, thus, was "to be deposited into the general treasury of Cambria County" after final disposition of the case on appeal. We affirm.

The facts, viewed in a light most favorable to the verdict-winner, consist of the following: On January 21, 1982, Pennsylvania State Trooper William A. Cipollini was introduced to "an interested citizen" by the District Attorney of Cambria County. An interview ensued in which the citizen-informant told the trooper that:

After the informant had told the trooper that he had purchased marijuana from the appellant "a couple of weeks" prior to the 21st of January, 1982, he agreed to participate in a "controlled" buy from the appellant. This occurred on January 26th and was preceded by the informant being strip-searched to minimize the possibility that he might already be in possession of drugs. The trooper then

[ 334 Pa. Super. Page 174]

    drove the informant to the appellant's residence and provided him with $20 to make whatever purchase he could with the money.

The informant was observed by the trooper entering the appellant's residence and exiting within 5 minutes in possession of a plastic sandwich bag containing a vegetable matter. The substance was tested, found to be marijuana and was the basis for a warrant to search the appellant's residence. Application for the warrant was made by Trooper Cipollini on the 27th of January, 1982, and was executed the following day at 6:30 a.m.

A 6-man search team, headed by Trooper Cipollini, announced their identity and purpose prior to gaining entry into the Graham residence. Thereafter, the police read the warrant to the appellant and his wife before advising them of their Miranda rights and commencing a search.

Trooper Cipollini found a brown paper bag in the dining room containing 2 plastic bags, each held approximately 1 pound of marijuana. Following this, the trooper positioned himself at the kitchen table and catalogued the items seized by other members of the search team. For example, 10 plastic bags containing 1 pound of marijuana each were found inside a garbage bag situated near the entrance way. From appellant's second floor bedroom 11 one pound bags of marijuana, which, when added with the other marijuana found on the premises, added up to approximately 26 pounds. In the same room, the police discovered $33,162.88 in cash, $30,717.00 of which was in a brown vinyl bag next to appellant's bed; 2,288 tablets of LSD in some dresser drawers; a .44 magnum Winchester rifle; a .12 gauge Smith and Wesson shotgun; a .12 gauge Fox double-barrel shotgun; and a Mettler electronic scale.

On the first floor, the police seized a sword-cane with a blade measuring 23 1/2 inches.

The inventory of the items was begun by Trooper Cipollini, but, because there was concern over appellant being arraigned within the time (6 hours) prescribed by law, the

[ 334 Pa. Super. Page 175]

    job was completed by Troopers Cunningham and Bellone while Trooper Cipollini drove the appellant to the State Police barracks in Greensburg for processing. Thereafter, Troopers Cunningham and Bellone transported the seized items to the barracks, and, along with Trooper Cipollini, reviewed the 3-page receipt/inventory. However, only Troopers Cipollini and Cunningham affixed their signatures to the document.

After the denial of appellant's omnibus pre-trial motion, the case proceeded to trial and the facts just recounted were presented to the jury, along with the testimony of Chief of Police for Gallitzin Borough (Joseph S. Fox) to substantiate the false report charges.

In particular, Chief Fox recalled that on November 8, 1980, appellant's sister reported that her brother's trailer had been burglarized. Two weeks thereafter, the appellant supplied the Gallitzin police with the serial numbers of some of the firearms allegedly stolen, two of which were the .12 gauge double-barrel Fox shotgun and the .44 magnum Winchester rifle found by the troopers in their search of appellant's residence on January 28, 1982.

On May 24, 1981, the appellant reported a second burglary. One of the items purportedly stolen was the .12 gauge Smith and Wesson shotgun seized by the troopers in the January 28th search.

In defense, the appellant testified that the drugs seized by the police were for personal use, the money found was accumulated through frugality, the items allegedly stolen were either replaced with similar weapons or simply not reported to the police upon recovery and the scale was purchased from an anonymous person in a bar for $150 -- the Mettler scale recovered from appellant's home was identified as stolen from L. Robert Kimball & Associates by its soils technician, who used it and ordered its replacement, and valued the stolen one at $1,000-$1,500 as of January, 1982.

[ 334 Pa. Super. Page 176]

The jury, hearing and weighing all of the evidence, entered a verdict of guilty on all charges. Appellant was sentenced and a timely appeal was filed therefrom. Shortly thereafter, the notice of appeal initially filed was amended to include an appeal from the order of court finding, after a hearing, some of the ...


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