No. 2871 Philadelphia, 1982, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Delaware County, No. 3330 of 1981.
Michael F. X. Coll, Media, for appellant.
Helen T. Kane, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wickersham, Wieand and Montemuro, JJ.
[ 339 Pa. Super. Page 418]
Richard Yacoubian, alleged to be the leader of a burglary and drug ring in Upper Darby, Delaware County, was found guilty by a jury of seven counts of theft by receiving stolen property,*fn1 possession and possession with intent to make delivery of controlled substances,*fn2 corrupt organizations,*fn3 and eight counts of criminal conspiracy.*fn4 On direct appeal, he argues (1) that he was incorrectly found guilty of violating the corrupt organizations statute; (2) that incriminating evidence should have been suppressed because the search warrant pursuant to which the evidence was seized had not been issued upon probable cause and also because the search conducted by police exceeded the authority granted by the warrant; (3) that the court committed trial error; and (4) that the sentence was excessive. Our review discloses only a sentencing error. This requires a remand for resentencing.
The Corrupt Organizations section of the Crimes Code, appearing at 18 Pa.C.S. § 911, proscribes in subsection (b) the following activities:
(1) It shall be unlawful for any person who has received any income derived, directly or indirectly, from a pattern of racketeering activity in which such person participated as a principal, to use or invest, directly or indirectly, any part of such income, or the proceeds of such income, in the acquisition of any interest in, or the establishment or operation of, any enterprise: Provided, however, That a purchase of securities on the open market
[ 339 Pa. Super. Page 419]
for purposes of investment, and without the intention of controlling or participating in the control of the issuer, or of assisting another to do so, shall not be unlawful under this subsection if the securities of the issue held by the purchaser, the members of his immediate family, and his or their accomplices in any pattern of racketeering activity after such purchase, do not amount in the aggregate to 1% of the outstanding securities of any one class, and do not confer, either in law or in fact, the power to elect one or more directors of the issuer: Provided, further, That if, in any proceeding involving an alleged investment in violation of this subsection, it is established that over half of the defendant's aggregate income for a period of two or more years immediately preceding such investment was derived from a pattern of racketeering activity, a rebuttable presumption shall arise that such investment included income derived from such pattern of racketeering activity.
(2) It shall be unlawful for any person through a pattern of racketeering activity to acquire or maintain, directly or indirectly, any interest in or control of any enterprise.
(3) It shall be unlawful for any person employed by or associated with any enterprise to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity.
(4) It shall be unlawful for any person to conspire to violate any of the provisions of subsection (1), ...