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filed: February 24, 1989.


Appeal from the Judgment of Sentence of the Court of Common Pleas of Delaware County, Criminal at No. 309-87.


Frank J. Marcone, Media, for appellant.

Dennis C. McAndrews, Assistant District Attorney, Wayne, for Com., appellee.

Cavanaugh, McEwen and Popovich, JJ. Cavanaugh, J., files a concurring and dissenting opinion.

Author: Popovich

[ 383 Pa. Super. Page 468]

This is an appeal from the judgment of sentence entered on March 28, 1988, by the Delaware County Court of Common Pleas against the appellant, John Smagala, following

[ 383 Pa. Super. Page 469]

    his conviction on the charges of possession of a controlled substance (cocaine) with intent to deliver,*fn1 possession of a controlled substance,*fn2 possession of drug paraphernalia*fn3 and possession of a firearm without a license.*fn4 Instantly, the appellant argues that the trial court erroneously denied his motion to suppress certain items of evidence on the ground that the evidence was seized as a result of an illegal search. He further contends that, even if that evidence was properly seized, his conviction on possession with intent to deliver charge was based on insufficient evidence, or, in the alternative, the verdict was against the weight of the evidence. Upon review, we have determined that the evidence was insufficient to support the conviction of the appellant for possession with intent to deliver cocaine. Thus, we vacate the judgment of sentence for the possession with intent to deliver conviction and remand for resentencing on the possession of a controlled substance charge.

The facts of this case as found by the trial court sitting without a jury were set forth in its opinion as follows:

At approximately 8:50 p.m. in February 3, 1987, police officer Phillip Turner of the Ridley Township Police Department, drove by a house located at 817 East MacDade Boulevard, Ridley Township, Delaware County, Pennsylvania and observed a yellow Ford Maverick parked in the driveway. The owner of the house, a Mrs. Henry, had advised the police that she was going to be away on vacation and that no one would be home at this address. She requested that the police periodically check the property during her absence. Prior to 8:50 p.m. on February 3rd, Officer Turner had performed this service as requested on numerous occasions, however, no vehicle had been observed at the premises. When Officer Turner saw this vehicle in the driveway on February 3rd, he also

[ 383 Pa. Super. Page 470]

    observed the boarded up garage located on the premises where light was shining through the cracks in the door and around the windows.

Officer Turner radioed the police station, informing them that he would be at this location for a while and requesting a registration check on the vehicle. Believing that criminal activity might be afoot, Officer Turner approached the garage and attempted to look inside. Being unable to see into the garage, but hearing movement inside, Officer Turner knocked on the door. After receiving no response, he attempted to open the door. The door was locked. Officer Turner then heard a voice from inside the garage asking who was outside. Officer Turner responded that it was the "Ridley Township Police." After a delay of approximately three to four minutes, the door was opened by Defendant, John Smagala. When the door opened, Officer Turner could see a partly disassembled vehicle in the garage.

During the aforementioned three to four minute delay, Officer Turner was notified that the Ford Maverick was owned by a Mr. Krauss who resided on 14th Street in the City of Chester. Officer Turner asked Defendant what he was doing in the garage. Defendant responded that he had rented the building and was using it to repair cars. When asked to produce documentation to confirm his story, Defendant could produce none.

Officer Turner informed Defendant as to why he was there and asked Defendant if he could "look around." Defendant replied, "Sure, I have no problem with that." (N.T. 11/17/87 pgs. 12-13). By this time Officer Dryden of the Ridley Township Police Department had arrived and he remained outside of the garage with Defendant. Officer Turner, pursuant to the permission given by Defendant, entered the garage to "look around".

On the left hand side of the garage was a workbench with a light on overhead. Officer Turner approached the bench and on top of it he observed a small glassine bag filled with small wire mesh screens varying in size of

[ 383 Pa. Super. Page 471]

    approximately 1/2 to 3/4 inch in diameter. The bag contained approximately 50 to 60 screens. The officer also observed several hundred burned matches and numerous matchbooks and a small glass pipe containing a wire screen inside the barrel. The glass pipe contained residue of what appeared to Officer Turner to be a controlled substance.

Directly below the bench was an open space in which at an open cardboard box. Officer Turner could look inside the box from where he was standing. Inside this box he observed a smaller box, approximately one inch high. In this smaller box Officer Turner observed a glassine bag containing a white powdery substance which Officer Turner suspected to be a controlled substance. Also in the smaller box were two bundles containing a total of 77 small glassine bags. All of these glassine bags contained what appeared to be the residue of controlled substances. Officer Turner then left the garage and Defendant was placed under arrest.

Pursuant to the arrest and prior to placing Defendant in the police vehicle, Defendant was searched. The search resulted in the following items being found in Defendant's pockets: (1) a rolled up $20 bill; (2) a razor blade; (3) a small glassine bag containing .8 grams of cocaine; (4) $834 in United States currency; and (5) four index cards, approximately 3 by 5 inches in size containing names with numerical values next to the names.

Thereafter, Defendant was taken to the police station. The Ford Maverick automobile was towed to the police station for safekeeping. At the police station, an inventory search was performed on the Ford Maverick. Defendant consented to this inventory search. During the search, the police found a loaded Smith and Wesson 9 millimeter semi-automatic pistol under the driver's seat. Defendant indicated that he owned the weapon, but did not have a license to carry it. A subsequent check with the Pennsylvania State Police confirmed that the Defendant did not have a license to carry the weapon.

[ 383 Pa. Super. Page 472]

As a result of the foregoing, Defendant, John Smagala, was charged on four separate criminal informations, Information No. 309A-87 charging knowing or intentional possession of controlled substances, to wit, cocaine (35 Pa. CSA § 780-113[a](30)), Information No. 309B-87 charging possession with intent to deliver controlled substance/cocaine (35 Pa. CSA § 780-113[a](30)), Information No. 309C-87 charging drug paraphernalia (18 Pa. CSA § 780-113[a](32)), and Information No. 309D-87 charging possession of firearms without a license (18 Pa. CSA § 6106(a)).

On October 21, 1987 Defendant filed a Motion to Suppress. In that Motion Defendant alleged that the February 3, 1987 search of the premises occupied by Defendant at 817 East MacDade Boulevard, Folsom, Pennsylvania, was illegal. In addition, the Defendant alleged that the search of the Ford Maverick automobile was also improper. Defendant requested that all evidence seized as a result of illegal searches be suppressed. A suppression hearing was held November 4, 1987. At the conclusion of the hearing, Defendant's Motion was denied.

On November 17, 1987 a non-jury trial was commenced. During the trial the Commonwealth presented two witnesses, Officers Phillip Turner and Charles Palo, of the Ridley Township Police Department. Officer Turner testified concerning the facts and circumstances surrounding the searches conducted on February 3, 1987 and he identified the various Commonwealth exhibits (C-1 through C-14), most of which were the items seized as a result of the three searches. Officer Palo was qualified as an expert witness in the field of narcotic investigation and the packaging, sale and distribution of controlled substances. He testified in detail concerning the significance of the Commonwealth's exhibits as they related to the sale and distribution of controlled substances. In addition, he offered the ...

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