Commonwealth v. Land

23 Pa. D. & C.3d 341, 1981 Pa. Dist. & Cnty. Dec. LEXIS 129
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedOctober 13, 1981
Docketno. 1642-80
StatusPublished

This text of 23 Pa. D. & C.3d 341 (Commonwealth v. Land) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Land, 23 Pa. D. & C.3d 341, 1981 Pa. Dist. & Cnty. Dec. LEXIS 129 (Pa. Super. Ct. 1981).

Opinion

NICHOLAS, J.,

On March 18, 1981, George Joseph Land was found guilty following a non-jury trial before the undersigned of possession of a controlled substance (marijuana)1, the manufacture of a controlled substance (methamphetamine-hydrocholoride, commonly known as (“speed”)2 and attempt to manufacture a controlled substance (“speed”)3. Post-verdict motions were denied and on August 12, 1981, defendant was sentenced to pay a fine of $1,000, the costs of prosecution, and to undergo imprisonment for not less than one and one-half years nor more than five years. The said sentence was imposed on the manufacturing charge with an identical concurrent sentence imposed on the attempt charge. On the possession of marijuana charge, a concurrent prison term of not less than six months nor more than 12 months was imposed.

Defendant has perfected an appeal to the Superior Court of Pennsylvania from the judgment [344]*344of sentence.4 Pursuant to Pa.R.A.P. 1925(b), appellant, as directed, filed a concise statement of the matters complained of on the appeal. The assignments of error are as follows:

1. That defendant did not knowingly, intelligently and voluntarily waive his right to a jury trial;

2. That the search warrant issued for his premises was not supported by probable cause;

3. That the seizure of items not specifically enumerated in the search warrant was beyond its scope and unlawful;

4. That the evidence was insufficient to sustain the conviction;

5. That appellant was denied the effective assistance of trial counsel.

The court has carefully considered each of these contentions and we conclude that they are without merit.

I. WAIVER OF JURY TRIAL

Defendant’s contention that he did not knowingly, intelligently and voluntarily waive his right to a jury trial is belied by the record. The court and counsel conducted a comprehensive colloquy with defendant in which all of the elements of the right to jury trial were explained to appellant and waived by him.

The test forjudging the validity of a waiver of jury trial is whether the essential ingredients of a jury trial have been explained to defendant and that they knowingly, intelligently and voluntarily were waived by him. In Commonwealth v. Williams, 454 Pa. 368, 373, 312 A. 2d 597, 600 (1973), the court held:

[345]*345“These essential ingredients, basic to the concept of a jury trial are the requirements that a jury be chosen from members of the community, that the verdict be unanimous, and that the accused be allowed to participate in the selection of the jury.”

As required by Pa.R.Crim.P. 1101, in addition to the on-the-record colloquy with defendant which satisfied the court that his waiver was knowing, intelligent and voluntary, defendant executed a written waiver of jury trial which was made part of the record: Com. v. Baxter, 282 Pa. Superior Ct. 467, 422 A. 2d 1388 (1980). Both the on-the-record colloquy with appellant as well as the written waiver include all of the essential ingredients of a jury trial. Defendant’s contention that his waiver of jury trial was invalid is without merit.

II. SEARCH WARRANT

This prosecution resulted from the execution of a search warrant at premises leased by appellant at 1857 Old York Road, Abington Township, this county. The premises were a single two-story house. The search warrant was obtained by Pennsylvania State Trooper Walter T. Zdunowski, who was the affiant on April 2, 1980. The search warrant was executed at about 6:30 p.m., on that date by state and local police. Execution of the search warrant resulted in the seizure of in excess of one pound of marijuana contained in several plastic bags found within a locked safe in a second floor bedroom; a variety of laboratory equipment including a mortar and pestle, pyrex chemical apparatus such as beakers, test tubes, glass tubing, litmus paper, calibrated glass droppers, funels, an Ohaus scale with weights, as well as certain chemicals. The chemicals included hydrochloric [346]*346acid, ether, isopropyl alcohol, carbon, and acetone. Additional items seized included a telephone bill in the name of appellant which was found on the desk on the second floor, a Western Union Mailgram addressed to defendant at 1857 Old York Road and dated March 22, 1980, and a piece of literature, found on the bedroom floor, directed to defendant at the same address from Edmond Scientific Company.

After the items were seized, a laboratory analysis revealed the presence of methamphetamine hydrochloride residue on a number of pieces of the chemical apparatus seized including the pyrex glassware, test tubes and stirring rods. In addition, methamphetamine hydrochloride residue was found within two of the plastic baggies and on a piece of used paper toweling. Expert testimony was offered by Alexander Stirton, a Criminalist employed by the Pennsylvania State Police and Don Jerre Miller, a Federal DEA Agent, that the type and quantity of chemicals found and the array of laboratory equipment plus the presence of methamphetamine hydrochloride residue on a number of items of laboratory equipment, was indicative of the clandestine manufacture of methamphetamine hydrochloride from liquid methamphetamine base. The process was described as the “latter stages of manufacturing” by Agent Miller whereby liquid methamphetamine base was converted into the commonly abused crystalline form of methamphetamine hydrochloride. This process could be completed in 10 to 12 hours.

The probable cause portion of the search warrant and affidavit provides as follows:

“Probable cause belief is based on the following facts and circumstances:

[347]*347I, the affiant, am a member of the Pennsylvania State Police, currently engaged in narcotics investigations, and have been employed as such for the past eight years.

On December 21, 1979, I, the affiant, received information from a confidential and reliable informant who stated that George Land was engaged in the sales of Methamphetamine from the above mentioned residence. Informant further stated that he had observed George Land in possession of Methamphetamine on numerous occasions and that he had also observed Land sell to juveniles.

As a result of this information, I, the affiant, conducted a surveillance of the above mentioned residence. During the course of the surveillance, this affiant did take photographs of the above mentioned resience. Observed parked in the rear of the residence was a Chevrolet pickup truck, Penna. Reg. no. CF67503, registered to George J. Land, also a Plymouth, Penna. Reg. no. 4V9446, registered to Joane C. Patrone.

As result of the aforementioned surveillance, conducted on December 28, 1979, in the daylight hours, and December 29, in the evening hours, reporting officer did not observe any traffic to and from the house. As a result of this negative surveillance, this affiant contacted the informant, and it was at this time that the informant stated to this affiant, that George Land was not in possession of Methamphetamine at this time. Informant further stated that when he learns that George Land is in possession he would contact this affiant again.

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Bluebook (online)
23 Pa. D. & C.3d 341, 1981 Pa. Dist. & Cnty. Dec. LEXIS 129, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-land-pactcomplmontgo-1981.