No. 22 Philadelphia 1984, Appeal from the Judgment of Sentence November 30, 1983 in the Court of Common Pleas of Berks County, Criminal No. 82162301. No. 733 Philadelphia 1984, Appeal from the Order entered December 30, 1983 in the Court of Common Pleas of Berks County, Criminal No. 82162301.
Theodore Simon, Philadelphia, for appellant.
Charles Gutherie, Assistant District Attorney, Reading, for Com., appellee.
Olszewski, Montgomery and Lederer,*fn* JJ.
[ 342 Pa. Super. Page 343]
Appellant challenges the order entered December 30, 1983 and the judgment of sentence entered November 30, 1983. By this appeal, he seeks to withdraw pleas of guilty entered on counts of possession with intent to deliver marijuana, hashish and methamphetamine. Appellant argues that the pleas are the poisoned fruit of an illegal search. The matter comes before us couched as a question of assistance of counsel. Appellant asks us to decide that he was denied effective assistance by trial counsel's failure to move for suppression of physical evidence obtained in that allegedly illegal search. For the reasons below we agree. We therefore vacate the judgment of sentence and reverse the order denying appellant's motion to withdraw his guilty pleas.
[ 342 Pa. Super. Page 344]
The facts of this case are succinctly stated in the lower court's opinion:
On August 12, 1982, Pennsylvania State Trooper Richard Rabb purchased methamphetamine from Rebecca Missimer and David Rhoads near the Boyertown dam in Berks County, Pennsylvania. At 5:00 P.M. on August 25, 1982, in New Berlinville, Berks County, Pennsylvania, Rabb gave $170.00 in marked currency to Missimer and Rhoads for the purpose of having Missimer and Rhoads procure methamphetamine for Rabb, at that time agreeing to meet later in the day. This meeting was surveilled by a Sergeant Ziegler and a Trooper Makos. After the meeting ended, Ziegler and Makos followed Rebecca Missimer, who was driving a beige Volkswagen, to the intersection of Douglass Road and Pennsylvania Route 562 in Douglass Township, Berks County, Pennsylvania. There Missimer drove onto the roadside and parked. Shortly thereafter a blue van registered to defendant Raymond Way pulled beside the beige Volkswagen in which Missimer was sitting. Forty-five minutes later the two vehicles parted with Trooper Makos following the blue van a short distance to a residence at the corner of Douglass Road and Glendale Road in Douglass Township, Berks County, Pennsylvania.
Later at 8:05 P.M. on August 25, 1982, Rabb again met with Rhoads and Missimer for the purpose of receiving the methamphetamine for which he had earlier paid. Once delivery of the methamphetamine occurred, Ziegler and Makos, who had since resumed surveillance, arrested Rhoads and Missimer, while Rabb through field testing determined the delivered goods to be methamphetamine. Rhoads and Missimer were then taken to the Colebrookdale Township Municipal Building and given their Miranda rights. Afterwards Missimer related obtaining methamphetamine from defendant Way on a number of occasions in the past, further explaining that the methamphetamine which had just been received by Rabb was provided by defendant. Upon receiving this information,
[ 342 Pa. Super. Page 345]
Makos determined by contacting Douglass Township Police that Raymond Way's residence was situated where Makos observed the blue van returning after the rendezvous with Missimer.
The issue was preserved for appeal by counsel representing appellant after entry of his guilty pleas. That counsel, citing trial counsel's ineffectiveness, filed a petition to withdraw appellant's pleas. See Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975) (trial counsel's ineffectiveness must be ...