390 A.2d 836 | Pa. Super. Ct. | 1978
The six Judges who decided this appeal being equally divided, the judgment of sentence is affirmed.
OPINION IN SUPPORT OF AFFIRMANCE
VAN der VOORT, Judge:
This is an appeal from a judgment of sentence following jury verdicts of guilty on charges of delivery of a controlled substance (marijuana) and possession with intent to deliver. Appellant contends that the judgment should be reversed and a new trial ordered because the trial court refused to suppress evidence obtained in the process of arresting appellant without a warrant and searching his home on a warrant which was allegedly defective. He advances the subordinate contentions that the testimony of a chemist that the controlled substance was in fact marijuana should have been stricken because not sufficiently established, and that the $10,000 fine imposed as part of his sentence is excessive. There is no merit in any of these contentions.
The facts as found by the trial judge at the suppression hearing are undisputed. An undercover drug agent of the Commonwealth, Thomas Gray, made friends with three individuals identified as Rick Maurone, Butch Molesky and Gary Scarpello, whom the agent believed to be involved in the
From the information received by Agent Gray from Mole-sky, Maurone and Scarpello, the appellant was identified as the seller, placed under arrest and given his Miranda warnings. He admitted his participation in the offense and offered to show where the $1,000 of marked bills was located.
The agents did not search the house until a search warrant was secured. Agent Gray and Officer Abernathy proceeded to State College Municipal Building to prepare the search warrant affidavit, but because of the hour they had to travel approximately 15 miles to the Bellefonte area
The circumstances under which the arrest was made do not bring this case within Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968). The arresting agent was accompanied by borough police who entered the premises through an open front door without resistance. It would have been self-defeating for the officers to have stopped at
When the appellant was arrested, he and the other occupants of the premises were detained in the first floor living room until a warrant could be obtained to search the premises. We now address ourselves to the argument that the application for the warrant did not establish probable cause for its issuance. If a common-sense reading of the affidavit supporting a search warrant indicates that sufficient information was provided the issuing magistrate to show the probability of illegal activity or contraband at the place to be searched, our court will not find the warrant invalid. See Commonwealth v. Williams, 236 Pa. Super. 184, 345 A.2d 267 (1975) and Commonwealth v. Temple, 232 Pa. Super. 453, 335 A.2d 805 (1975). A common-sense reading should be given the affidavit, and doubtful or marginal cases should be resolved in favor of upholding the warrant. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).
The affidavit on which the warrant in this case was issued abundantly establishes probable cause. Reading the application for the warrant in its entirety makes quite clear that the date of the occurrence set out in the affidavit was October 29, 1975, that the premises to be searched had been secured earlier that same evening and were being held by officers pending the issuance of a warrant. The application shows that marijuana was believed to be on the premises and that it was in danger of being destroyed unless a search could be made at once. The petition was quite adequate to support the issuance of the warrant.
Finally, appellant challenges as excessive the $10,000 fine that was imposed as part of his sentence. The trial court has a broad discretion in imposing sentences: Commonwealth v. Hill, 237 Pa. Super. 543, 353 A.2d 870 (1975). We stated in Hill that there was no abuse of discretion unless the sentence was so manifestly excessive as to inflict too severe a punishment. In the case before us the pre-sentence investigation report compiled by the Pennsylvania Board of Probation and Parole ascertained that appellant was part owner and operator of a clothing store on Beaver Avenue in State College, and that he was also involved in a South American import operation dealing in clothing and artifacts. The facts of this case demonstrate that he was able to obtain marijuana worth $12,000. Under these circumstances, the fine does not appear to be excessive. It may be difficult to pay, but it was not an abuse of discretion.
The judgment of sentence should be affirmed.
OPINION IN SUPPORT OF REMAND
SPAETH, Judge:
Appellant contends that the imposition of a $10,000 fine was excessive. Although a trial judge has broad discretion
(c) Exception. — The court shall not sentence a defendant to pay a fine unless it appears of record that:
(1) the defendant is or will be able to pay the fine: and
(2) the fine will not prevent the defendant from making restitution or reparation to the victim of the crime.
(d) Financial resources. — In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose. 1972, Dec. 6, P.L. 1482, No. 334, § 1326, added 1974, Dec. 30, P.L. 1052, No. 345, § 1, effective in 90 days.
The majority concludes that this standard was met since appellant was able to obtain $12,000 to purchase the marijuana, and since appellant’s pre-sentence report reveals that he is a part owner and operator of a clothing store and is involved in an import business. The record clearly does disclose that appellant obtained $12,000. However, in regard to appellant’s “financial resources,” appellant, in his brief, quotes from his pre-sentence report as follows:
EMPLOYMENT:
Mr. Kinkead is presently part owner/operator of The Chameleon, a clothing store on Beaver Avenue, State College. The store is operated on a consignment basis with the defendant drawing a modest salary plus commission. He also is involved in Taparacu, a South American import operation, importing clothing and artifacts. His partner in both operations is Richard Myers of . Whipple Dam.
FINANCIAL CONDITION:
The defendant claims to own nothing since his assets are more than outweighed by his indebtedness. He has some equity in The Chameleon, but owes his family and pays $40 a month for an auto wreck he was in.