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COMMONWEALTH PENNSYLVANIA v. NICHOLAS J. SEMUTA (05/01/89)

submitted: May 1, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
NICHOLAS J. SEMUTA, APPELLANT



Appeal from the Judgment of Sentence September 30, 1987 in the Court of Common Pleas of Franklin County Criminal Division, No. 565 of 1987.

COUNSEL

Deborah K. Hoff, Waynesboro, for appellant.

Gregory L. Lensbower, Asst. Dist. Atty., Chambersburg, for the Com., appellee.

Rowley, Montemuro and Cercone, JJ.

Author: Cercone

[ 386 Pa. Super. Page 257]

This is an appeal from a judgment of sentence. Appellant, Nicholas J. Semuta, entered a plea of guilty on September 2, 1987 to a charge of possession of a small amount of marijuana.*fn1 On appeal, appellant now posits that he was improperly denied probation without verdict pursuant to section 17 of the Controlled Substance, Drug, Device and Cosmetic Act.*fn2 We disagree and affirm the lower court's judgment of sentence.

The lengthy procedural posture of the instant case is as follows. Appellant entered a plea of guilty on September 2, 1987 to a charge of possession of a small amount of marijuana. On September 30, 1987, appellant requested disposition by probation without verdict. As a prerequisite to granting probation without verdict, the lower court required appellant to submit to urinalysis testing and to test negative. Appellant declined to participate in this testing. Subsequently, the court denied appellant's request for probation without verdict and sentenced him to thirty (30) days probation with appellant paying the costs of prosecution

[ 386 Pa. Super. Page 258]

    and three hundred ($300.00) dollars to the Franklin County Law Library.

On October 12, 1987, appellant filed a motion for modification of sentence. The lower court vacated appellant's sentence on October 20, 1987 and held a hearing on this motion on November 12, 1987. At this hearing, the court offered to grant appellant probation without verdict on the condition that he serve six (6) months probation and pay a fine of five hundred ($500.00) dollars. Appellant also rejected this offer. Subsequently, the court denied his second request for probation without verdict and reinstated the sentence imposed on September 30, 1987. Appellant filed a motion for modification of this sentence which the lower court denied on November 16, 1987. Appellant then filed an appeal to this court.

On February 18, 1988, we entered an order deeming appellant's appeal waived pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A. Appellant subsequently filed a petition for allowance of appeal with our state supreme court. On December 9, 1988, the Pennsylvania Supreme Court, 520 Pa. 74, 550 A.2d 1317 vacated our order of February 18, 1988 and remanded this case to us for disposition on its merits. Thus, we address the merits of appellant's appeal as follows.

Appellant presents five issues for our review. First, appellant contends that his sentence is not appropriate with regard to section 9781(b) of the Sentencing Code.*fn3 Second, appellant argues that a requirement that he undergo drug testing at the time of disposition to establish non-use of any controlled substance is impermissible, unreasonable and discordant with the statutory intent of the probation without verdict section. Third, appellant proposes that the Enzyme Multiplied Immunoassay Technique test ...


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