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COMMONWEALTH PENNSYLVANIA v. CHARLES NEIDIG (03/15/85)

filed: March 15, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
CHARLES NEIDIG, APPELLANT



No. 01587 Philadelphia 1983, APPEAL FROM THE JUDGMENT OF SENTENCE MAY 31, 1983 IN THE COURT OF COMMON PLEAS OF NORTHUMBERLAND COUNTY, CRIMINAL NO. CR-81-292, 293, 294

COUNSEL

Peter T. Campana, Williamsport, for appellant.

Robert B. Sacavage, District Attorney, Mount Carmel, for Comm., appellee.

Cavanaugh, Cirillo and Johnson, JJ.

Author: Cirillo

[ 340 Pa. Super. Page 219]

This is an appeal from judgment of sentence entered by the Court of Common Pleas of Northumberland County. Appellant was convicted of possession of a small amount of marijuana, possession with intent to deliver marijuana, and

[ 340 Pa. Super. Page 220]

    two counts of unlawful delivery of marijuana. He was sentenced to 15 to 30 days for possession of a small amount of marijuana, to run concurrently with a sentence of 2 1/2 to 5 years for possession with intent to deliver marijuana. For each of the unlawful delivery of marijuana charges, appellant was sentenced to 2 1/2 to 5 years, to begin at the expiration of and run consecutively to the sentence for possession with intent to deliver marijuana. In sum, appellant was sentenced to a minimum of 7 1/2 years and a maximum of 15 years. Post-verdict motions were denied, and appellant now challenges the sufficiency of the evidence presented against him, the trial judge's denial of his motion to suppress certain evidence, the propriety of certain prosecutorial remarks made during closing arguments, and also the fairness of the sentence imposed.

Commonwealth witness Kirk J. Weaver testified at appellant's trial. Weaver's residence had been searched by the police, and more than a quarter pound of marijuana was found. At that time, Weaver stated that he had sold stolen property to appellant. Pursuant to a search warrant based on this statement, appellant's residence was searched by Coal Township police. While looking for the stolen property that was the basis for the search warrant, the police discovered 24.5 grams of marijuana, as well as drug paraphernalia including scales, plastic baggies, spoons, and pipes. These items were beyond the scope of the search warrant; however, appellant gave the police written permission to seize them without obtaining a new warrant. All of these items were admitted into evidence at trial.

Weaver testified at trial that the marijuana discovered at his residence was purchased from appellant. It is appellant's contention that Weaver's testimony is the only evidence on record establishing any sale between the two parties, and, standing alone, is insufficient to prove the second of the two delivery of marijuana charges brought against him. Although we believe that the testimony corroborated by the physical evidence presented was sufficient to establish one delivery, we agree with appellant that the

[ 340 Pa. Super. Page 221]

    evidence as a whole was insufficient as a matter of law to prove two separate deliveries of marijuana.

At the time of his arrest, Weaver told police that the marijuana found at his residence was purchased in part from appellant and in part from someone in Harrisburg. However, Weaver testified that he lied to the police. In this connection he stated simply that all the marijuana recovered at his home was purchased from appellant. This testimony contradicted any previous statements regarding the location of a second transaction. More importantly, it negated the very existence of a second transaction. Further, Weaver testified that the marijuana was purchased from appellant approximately two days prior to his June 10 arrest, and ...


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