Appeal from the Judgment of Sentence entered March 30, 1987 in the court of Common Pleas of Delaware County at No. 6622 of 1985.
Edward J. McMearty, Assistant Public Defender, Villanova, for appellant.
Joseph J. Mittleman, Assistant District Attorney, Media, for Com., appellee.
McEwen, Montemuro and Kelly, JJ. McEwen, J., files a concurring and dissenting statement.
[ 375 Pa. Super. Page 332]
This case involves a direct appeal from judgment of sentence imposed on March 30, 1987, following appellant's conviction of three counts of knowing and intentional possession of a controlled substance (methamphetamine and cocaine) with intent to deliver or manufacture. Appellant raises three issues on appeal: (1) whether the trial court erred in not granting the appellant's motion to dismiss based upon prosecutorial vindictiveness; (2) whether the trial court erred by admitting into evidence at a hearing on a request for disposition under Section 17 of the Drug Act, the testimony of a Drug Enforcement Administration Official concerning distribution, sale and packaging of drugs and evidence of intercepted conversations concerning the sale and obtaining of drugs as such was irrelevant and immaterial to the issue of appellant's status as a drug addict under the Act; and (3) whether the trial court should have granted disposition under Section 17 of the Drug Act. We reverse and remand for an evidentiary hearing on the first issue.
The relevant facts and procedural history of this case may be summarized as follows. On June 12, 1984, Brian Sallade, a confidential informant working with the police department, purchased 13.9 grams of methamphetamine
[ 375 Pa. Super. Page 333]
from the appellant. On August 8, 1984, Mr. Sallade purchased 28 grams of cocaine from the appellant. On September 18, 1984, Mr. Sallade purchased $5,000.00 worth of cocaine from an individual named Mark Much. This sale was made in appellant's presence and in appellant's home. On the same day, pursuant to a lawful warrant, the police conducted a search of appellant's home. The police found 17.2 grams of methamphetamine, a jar of marijuana seeds and a growing season log. All of these transactions were part of an ongoing criminal investigation which apparently ended in September of 1984.
The appellant was arrested and charged with drug offenses relating only to the delivery made by Mark Much. On October 10, 1985, the Honorable Rita Prescott granted appellant's motion for disposition of probation without verdict under Section 17 of the Drug Act.*fn1 An appeal by the Commonwealth was dismissed by this Court on procedural grounds.*fn2
On October 16, 1985, only six days after the Section 17 disposition, a supplemental report was filed indicating that appellant was given probation under Section 17 of the Drug Act. This was the only entry made to this file since the investigation ended in September of 1984. On October 19, 1985, the complaint and affidavit of probable cause in the instant matter was filed. Appellant was charged with possession and possession with intent to deliver related to the June 12th and August 8th sales and the September 18th search. Appellant filed a motion to dismiss, which was denied.
On April 24, 1986, after a stipulated non-jury trial, the appellant was convicted of possession of a controlled substance with intent to deliver or manufacture. The appellant requested disposition under Section 17 of the Drug Act, which was denied following a hearing. Timely post-verdict motions were filed, argued and denied.
[ 375 Pa. Super. Page 334]
On July 30, 1986, the Honorable Clement J. McGovern, Jr. sentenced the appellant to consecutive sentences consisting of not less than six (6) months nor more than twenty-three (23) months, and five years county probation on each of the three convictions respectively. On August 7, 1986, Judge McGovern granted the appellant's motion for reconsideration and vacated the sentence of July 30, 1986. Argument was heard on ...