Appendix — Steingraber v. Pennsylvania

» || FILED |

y > - FER 18 1986

85 -] 5 5 6 | | JOSEPH F SPANIOL, JR.

} CLERK |

IN THE

SUPREME COURT OF THE UNITED STATES

WILLIAM JOSEPH STEINGRABER,

Petitioner

vs.

COMMONWEALTH OF PENNSYLVANIA,

Respondent

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF PENNSYLVANIA

Norma Chase, Esquire

505 Court Place

Pittsburgh, Pa. 15219

(412) 471-2946

Attorney for Petitioner

INDEX TO APPENDIX

Opinion of the Superior Court

Of Pennsylvanidecccccccccccccccccccla

Order of the Superior Court

of PONNSylvaniScccccscccecsccccccsete&

Opinion of the Court of Common

Pleas of Berks County,

PONNSYLVEN1IBscccoccccccccccccecsece2s&

Order of the Court of Common

Pleas of Berks County,

PORROTLVERIBccccccecoccesccocesovbalke

Order of the Supreme Court of

PONNGVlvVaANisccccccccceccccccesoelsaea

Order of the Supreme Court of

Pennsylvania (denying

FOOTEUMENE )eccccccccccccccoccccegs saa

IN THE SUPERIOR COURT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA

Ve

VINCENT ANTHONY SANTARELLI,

Appellant

No. 543 Philadelphia 1983

COMMONWEALTH OF PENNSYLVANIA

Ve

WILLIAM M. GUINTHER,

Appellant

No. 714 Philadelphia 1983

COMMONWEALTH OF PENNSYLVANIA

Ve

WILLIAM JOSEPH STEINGRABER,

Appellant

No. 818 Philadelphia 1983

BEFORE: WIEAND, OLSZEWSKI,

AND POPOVICH, JJ.

OPINION BY OLSZEWSKI, J.

October 26, 1984

This appeal follows each’ man's

convictions on counts of possession of

a Schedule I controlled substance, to

. oa 1 , ; ,

wit, marijuana, possession with intent

la

to deliver, and criminal conspiracy.

The cases were consolidated for trial

and again for appeal. We address in

turn the claims of each appellant.

William A. Guinther

Guinther argues: (1) insufficient

evidence introduced by the Commonwealth

against Guinther mandates reversal and

discharge; (2) the trial court’ erred

by refusing to instruct the jury on the

offense of possession of less than 30

grams of marijuana; and (3) prosecutorial

misconduct during closing argument

mandates reversal. Guinther's argument

concerning the sufficiency of the evidence

is developed for the first time on appeal.

Guinther's trial counsel raised

the issue of sufficiency of the evidence

in post-verdict motions. He failed,

however, to develop the issue in his

post-trial brief. Finding that Guinther

had waived the issue, the trial court

2a

refused to reach the merits of the

argument. Lower ct. op. at 2 n. 3.

On appeal, Guinther by his new

counsel argues that failure to brief

the issue constitutes ineffective

assistance of counsel. Ineffective

assistance will be found where counsel

without reason neglects a claim of

arguable merit. Commonwealth v. Upsher,

497 Pa. 621, 626-627, 444 A. 2d 90, 92

(1982); Commonwealth v. Knox, 304 Pa.

super. 366, 373, S350 A. 24 725, #27

(1982). To reach the issue of ineffective

assistance we must first address’ the

foregone claim, the sufficiency of the

evidence.

Appellant asserts that the evidence

introduced by the Commonwealth against

him is insufficient in law to prove beyond

a reasonable doubt ali the elements of

the crimes with which he was charged.

We disagree.

3a

{n assessing the sufficiency of

the evidence on appeal, the standard

is well-settled. We must ask whether,

accepting as true, all the evidences

and all reasonable inferences deductible

from such evidence upon which the trier

of fact could have based his verdict,

the evidence’ and the inferences’ are

sufficient in law to prove guilt beyond

a reasonable doubt. Commonwealth Ve

Wiliijanuse,. 466 fa. 337, 363, 3202 &« 28

244, 248 (1976). Moreover, in reviewing

the evidence, we must consider it in

the light most favorable to the

Commonwealth. Commonwealth v. Ilgenfritz,

466 Pa. 345, 348, 353 A. 2d 382, 389

(1976).

After carefully reviewing the record,

we are satisfied to adopt the statement

of facts set forth in the lower court

opinion.

In November, 1980 Wendell

Mihalak was employed by the Federal

4a

Aviation Administration (FAA) as

an air traffic controller at the

Reading Airport in Reading,

Pennsylvania and had been so employed

for approximately twelve years (N.T.

228-30.) Mihalak knew defendant

Guinther through several parties

given by Mihalak's boss and attended

by both Mihalak and Guinther, through

Guinther's association with the

American Bonanza Society which is

4 flying organization having an

office building at the Reading

Airport, and also through Guinther's

status as a flight instructor, and

had spoken with Guinther over the

radio about a thousand times during

the preceding seven or eight years

(N.T. 229-31). Because of his

familiarity with Guinther's voice,

Mihalak recognized it when a man

piloting a twin-engine Baron 6729

Tango called him for take-off taxi

instructions on November 10, 1980

at 5:00 a.m. while Mihalak was on

duty at the Reading Airport (N.T.

231). In response to Mihalak's

query, Guinther informed Mihalak

that he was headed for West Palm

Beach, Florida, and engaged in some

further conversation with Mihalak

regarding tail winds before taking

off (N.T. 231).

On November 11, 1980 Raymond

Gillman was employed by the FAA

and was working as an air traffic

control specialist at the Vero Beach

Airport's flight service station

in Vero Beach, Florida (N.T. 304).

After receiving a telephone call

that evening Gillman observed an

aircraft taxiing into the parking

5a

ramp area at the Vero Beach Airport

at approximately 8:15 p.m. (N.T.

304-05). From his vantage point

approximately two hundred feet from

where the aircraft was parked in

a well-lit area, and with the

intermittent aid of binoculars,

Gillman noticed that the aircraft

bore the numbers N6729T and that

it appeared to be carrying several

large brown boxes in the cabin area

behind the pilot and _ co-pilot's

seats (N.T. 305-06, 308). Gillman

also saw one individual get out

of the aircraft, which individual

was a man who appeared to be in

his fifties, wore a suit and tie,

and walked with a very pronounced

limp (N.T. 306-07). Shortly after

exiting the aircraft this man entered

the flight service station, where

he was observed by Gillman from

a distance of twenty-five feet (N.T.

307). Gillman identified the

individual who got out of the

aircraft N6729T as being the

defendant William Guinther (B.T.

307-08). Approximately one-half

hour after he first saw the aircraft

N6729T, Gillman observed it taxiing

out and away from the parking ramp,

and then it disappeared from his

view (N.T. 309).

Jn the evening of November

Li. 1980 Officer Andrew Bradley

of the Vero Beach Police Department

received a telephone call, and as

a result of that call, went in his

police vehicle to the Vero Beach

Airport for the purpose of stopping

a plane (N.T. 321). Once out on

the taxiway Officer Bradley observed

6a

an aircraft bearing the numbers

N6729T taxiing out towards the main

runway (N.T. 322). He approached

the plane from the front, passed

it on its left side, keeping pace

with it as it continued to taxi

(8.Te 322, 324). Officer Bradley

turned on his police unit's siren

and flashing blue lights as_ he

initially approached the aircraft,

and kept them on as he traveled

alongside it (N.T. 322-23). Bradley

also aimed his spotlight into the

Gockpit, and was able to see the

pilot's face as the pilot turned

towards the light (N.T. 324).

Bradley described the pilot as a

man in his early to mid-fifties,

with graying hair and dark-rimmed,

clear-lensed glasses, and identified

him as the defendant William Guinther

(NT. 325) Bradley kept his

spotlight on and pointed at’ the

cockpit as he paralleled the plane,

traveling three or four feet off

the right wing tip at a speed of

ten to fifteen miles per hour for

a distance of two hundred and fifty

to three hundred yards (N.T. 323-24,

326). He observed what he believed

to be luggage behind the pilot's

seat and an umbrella handle in the

cockpit (N.T. 325-26). He also

obtained a second look at the pilot's

face when the pilot again turned

to look at Bradley's police vehicle

(N.T. 326-27). As the aircraft

and Bradley's vehicle reached the

end of the taxiway, the former turned

onto the main runway, and Bradley

cut across a strip of grass in an

attempt to get in front of the plane

7a

(N.T. 324). He was successful in

his attempt, but was. obliged to

move out of the way in order to

avoid being hit by the aircraft

(B.Ts 329). The plane then’ took

off over the roof of a second police

vehicle which had been dispatched

to Officer Bradley's aid (N.T. 330).

At 3:00 a.m. on November 12,

1980 Wendell Mihaiak, while on duty

at the Reading Airport, received

a radio call from a pilot then flying

over nearby Ephrata, Pennsylvania,

and Mihalak recognized his voice

as being that of the defendant

William Guinther (N.T. 232). Using

the call sign November 9488 Sierra,

the pilot requested landing

instructions, which Mihalak supplied

the 232). Following Mihalak's

instructions, the pilot landed and

taxied over to the west part of

the ramp near the American Bonanza

Society building, and Mihalak

observed an individual exit the

aircraft, walk over to the Bonanza

Building, and turn on a light (N.T.

232) Two or three minutes later

Mihalak saw a pickup truck without

a cap or camper on the back leave

the area, and five minutes after

that Mihalak saw it return (N.T.

232-33). Shortly thereafter Mihalak

noticed a large blue pickup truck

with a white cap or camper coming

u a road next to the Bonanza

building (N.T. 232). After stopping

at a gate, this second truck drove

up to the aircraft, approaching

it from the front, and pulled next

to the plane's right side, remaining

there for five or ten minutes before

8a

.

‘

=> ;

'

¢ - a 7 - ~ 7

an S * > a) =yall a _ ._< = ?

: a nie 7 0 ira = = iJ y = ee ‘ ’ ‘ ~ ‘ 7 ae Fs

, 7 = ed) ~ = - ae 5 7 @ 7 a

leaving via the same road it had

arrived (N.T. 234). In the half

hour immediately preceding the

landing of the above-mentioned

aircraft, no other planes’- landed

at the Reading Airport, and in the

half hour immediately thereafter,

only one plane, a United States

Customs aircraft, landed tnar

234-35).

On November 11 and 12, 1980

George Kontrabecki was a pilot and

law enforcement officer employed

by United States Customs and

stationed in Jacksonville, Florida

(N.T. 444), On the evéning of

November 11, Kontrabecki took off

from Jacksonville in a Customs

aircraft for the purpose of pursuing

another plane, and was accompanied

on this flight by Houston Allman,

a Customs Air Officer who rode in

the rear of the Customs aircraft

(BT 404, 445). After landing

his plane in Baltimore to refuel,

Kontrabecki continued on to the

Reading Airport, where he _ landed

at approximately 3:30 a.m. on

November 12 (N.T. 446). Mihalak

then directed Kontrabecki over to

the western part of the ramp near

the Bonanza Building, and as

Kontrabecki was taxiing in that

direction he observed a twin-engine

aircraft bearing the numbers N6729T

parked in front of the building

and a bluish or _ greenish pickup

truck with a white camper’ shell

backed up at an angle to- the

eircreft’'s right side (€8.Ts 2335

446-48, 451). By the time

Kontrabecki reached the ramp this

9a

pickup truck became mobile,

proceeding towards the west_~ gate

without its lights on (N.T. 448-49).

Kontrabecki followed the truck in

his plane to the vicinity of the

west gate, where the truck's lights

were turned on (N.T. 449). The

truck then proceeded through the

gate and down a hill out of

Kontrabecki's sight (N.T. 449).

At approximately 3:30 aeM.

on November 12, 1980 State Troopers

Leon Huey and Louis Belsterling

proceded to the Reading Airport

in a patrol car, traveling north

on Route 183 (N.T. 555-56, 620).

After passing the front’ entrance

to the airport, Trooper Huey, who

was driving, made a right hand turn

onto a service road leading to the

west gate, whereupon both Huey and

Belsterling observed a set of

headlights coming towards them from

the vicinity of the west gate (N.T.

56-57, 621). Both officers watched

these headlights proceeding down

the road towards their patrol car,

and within a few seconds of stopping

their vehicle at the first

intersection, were able to observe

the source of the headlights, i.e.,

a bluish-green pickup truck with

a white or light cap or camper which

also arrived at the same intersection

and stopped (N.T. 556-56, 563-65,

621-22). The pickup truck’ then

made a lefthand turn at the

intersection and proceeded towards

Route 183, whereupon Huey made a

U-turn in the intersection and

followed the truck (N.T. 557-58).

Huey continued to follow the truck

10a

tat

af

as it turned left onto Route 183,

and was able to observe several

Square-shaped packages in the rear

portion of the truck inside the

camper (N.T. 558-59, 622). As the

truck neared the main entrance to

the airport on Route 183 Huey turned

the patrol vehicle's red _ lights

on, and the pickup truck pulled

over (N.Ts 559, 622-23). Using

his public address system, Huey

told the occupants to get out of

their vehicle and proceed to _ the

rear of the truck, which they did

(RTs 559-60). Both Huey and

Beisterling identified the truck's

occupants as defendants William

Steingraber and Vincent Santarelli,

the former having exited the vehicle

from the driver's side and the latter

from the passenger's side (N.T.

560, 623-24, 639, 651-52). The

police then instructed the occupants

to get back into their vehicle and

return to the area from which they

had just come, whereupon both

re-entered the truck and, followed

by Huey and Belsterling, proceeded

back up the service road and stopped

a few feet from the west gate (N.T.

561-62, 624-26). |

Three or four minutes’ after

Customs Officer George Kontrabecki

lost sight of the pickup truck which

he initially saw parked near_ the

aircraft N6729T he observed a pickup

truck fitting the same description

coming back up the hill towards

the west gate, followed by a marked

State Police vehicle (N.T. 451-53).

Customs Officer Houston Aliman,

while standing near the gate, saw

lla

Te

the two men in the vicinity of the

pickup truck, and identified them

as defendants Steingraber and .

Santarelli (N.T. 453-54). Allman

looked into the rear of the pickup

truck from the outside and = saw

numerous packages enclosed in brown

paper or boxes, at least some of

which were torn in places, and

through these tears was able to

see a substance protruding which

appeared to be marijuana (N.T. 406,

412, 421). Allman then opened the

rear door of the truck and being

satisfied that the substance was

marijuana, he walked over to the

men who had been in the pickup truck

and read them their rights (N.T.

406). Kontrabecki also looked into

the back of the truck and saw what

appeared to be marijuana in a number

of torn packages, and subsequently

observed, from the outside of the

aircraft with the aid of a

flashlight, a small amount of

vegetable matter or debris resembling

marijuana on the floor inside the

aircraft N6729T (N.T. 453-55).

In addition, Kontrabecki tried the

handles on the passenger and cargo

doors of the aircraft N62729T, and

found that he was able to open them

(N.T. 456-57).

On November 12, 1980 Corporal

Gary Stiver of the Pennsylvania

State Police took rolled ink

impressions of all ten of defendant

Guinther's fingerprints, and

transferred them to a fingerprint

card (Exhibit 2) (N.T. 392-95).

Corporal Roman Petrosky, also of

the Pennsylvania State Police,

12a

testified that six latent

fingerprints lifted from inside

the aircraft N6729T matched various

fingerprints on Exhibit 2, and stated

that in his opinion, the prints

found inside the plane and those

on Exhibit 2 were made by the same

person (N.T. 752-68). Paul

Skrimcovsky, a criminalist with

the Pennsylvania State Police, tested

the debris (Exhibit 2) found inside

the aircraft N6729T, and the eleven

packages (Exhibit 10) removed from

the pickup truck, and found that

all contained marijuana and _ that

the eleven packages had a combined

net weight of 343.6 pounds (N.T.

846-52). Trooper Ronald Haberstroh,

a fourteen year member of the

Pennsylvania State Police Troop

L vice unit, testified that in his

opinion, possession of 343.6 pounds

of marijuana is not consistent with

personal use (N.T. 869-72).

Lower ct. op. at 9-10. Further, we agree

with the Honorable Richard Eshelman that:

The above-recited evidence,

particularly that relating to

defendant Guinther's taking off

from Reading from Florida in aircraft

N6729T, his presence the following

day at Vero Beach, Florida in

aircraft N6729T, which carried what

one witness described as large brown

boxes, his evasion of Vero Beach

police, his use of the incorrect

call sign 9488 Sierra when landing

in Reading, the presence of the

pickup truck shortly thereafter

13a

next to aircraft N6729T for five

or ten minutes, the observation

by state police officers of the

pickup proceeding from the west

gate onto Route 183 loaded with

packages, which truck was occupied

by Steingraber and Santarelli and

which package contained 343.6 pounds

of marijuana, the presence of

marijuana residue and Guinther's

fingerprints in aircraft N6729T,

and the fact that possession of

343.6 pounds of marijuana is not

consistent with personal use of

such substance, was more than

sufficient evidence to allow the

jury to conclude that Guinther

transported 343.6 pounds of marijuana

from Vero Beach to Reading in

aircraft N6729T, that as pilot

Guinther has both the power = and

intent to control the marijuana,

that the marijuana was transferred

from this plane to the pickup truck

by Steingraber and Santarelli and

transported in the truck occupied

by them, that the latter two

defendants had the power and intent

to control the contraband while

it was transferred to and located

and transported in the truck, and

that all of the above was done

pursuant to an agreement among the

three defendants to accomplish the

same. Having drawn the above

conclusion, the jury could properly

find the defendants guilty of

possession of the controlled

substance, marijuana, possession

with intent to deliver it. and

conspiracy to commit these crimes,

Lower ct. op. at 9-10.

l4a

Guinther relies on three out-of-state

cases to support his argument. Dubry

ve State, 582 S.W. 2d 841 (Tex. Crim.

App. 1979); U.S. v. Burgos, 579 F. 2d

747 (2d Cir. 1978); and Waiden v. State,

579 S.W. 2d 499 (Tex. Crim. App. 1979).

We receive these decisions as persuasive

authority but not binding precedent.

See Commonwealth v. National Bank & Trust

Co. of Central Pennsylvania, 469 Pa.

187, 364 A. 2d 1331 (1976). The two

Texas cases stand for the proposition

that conviction under a “constructive

possession" theory requires proof of

an affirmative link between the accused

and the contraband. See Willis v. State,

636 S.W. 2d 602, 605 (1982). In Willis,

the court found the requisite link in

evidence of proximity and control. That

same link exists in this case in proof

that Guinther piloted the plane _ from

Vero Beach to Reading. Similarly, Burgos

15a

supports the proposition that mere

presence is not enough. We agree. In

the instant case, however, evidence that

Guinther had flown the plane from Vero

Beach must be considered with the fact

of his flight from Florida authorities,

the presence of marijuana on the floor

of the plane, the discovery of the 343.6

pounds of marijuana and the attendant

circumstances. A review of the _ record

below leads us to the conclusion that

the facts presented at trial by the

Commonwealth were such that a jury could

-find beyond a reasonable doubt’ that

Guinther committed the crime charged

against him.

Finding the omitted claim meritless,

we do not reach the second prong of the

test - whether the course chosen by

counsel had some reasonable basis designed

to effectuate the interests of the client.

See Commonwealth ex rel. Washington v.

l6a

a

Maroney, 427 Pa. 599, 235 A. 2d 349

(1967).

Judge Eshelman's able opinion has

resolved Issues 2 and 3. We note that

Guinther's second argument fails on its

own terms. The doctrine of

lesser-included offenses evolved at common

law to prevent the prosecution from

failing where some element of the crime

charged was not made out. "There is

no duty on a trial judge to charge upon

law which has no applicability to

presented facts." Commonwealth v. Wilds,

240 Pa. Super. 278, 279, 362 A. 2d 273,

278 (1976). In Wilds, police had searched

the defendant and his home. They seized

approximately 4 pounds from defendant's

home but less than 30 grams from his

person. On appeal, this Court looked

to three factors, the quantity of

marijuana seized, the disparate penalties

for the various offenses, and the apparent

jury confusion over the charge. We

l7a

———m

reversed on the trial court's’ refusal

to charge the jury on possession of less

than 30 grams of marijuana. In the

instant case, the ~0025 ounces of

marijuana represents the residue scraped

from the floor of [an] airplane found

at 3:30 in the morning in the vicinity

of a truck carrying 343 pounds of

marijuana. On the facts, we find

Guinther's argument somewhat less’ than

compelling.

Judgment of sentence affirmed.

Vincent A. Santarelli

Santarelli charges: (1) failure

to suppress illegally seized contraband

introduced by the Commonwealth against

Santarelli, (2) failure to grant a change

of venue or other relief necessary to

ensure a fair trial, (3) insufficient

evidence introduced by the Commonwealth

against Santarelli, (4) improper closing

argument by the Assistant District

Attorney; and (5) failure to instruct

18a

= ee

the jury in accordance with the

defendant's points for charge mandate

reversal. After a careful review of

the record, we find Judge Eshelman's

opinion has disposed of Issues 1, 3,

4, and 5. We find appellant's argument

on Issue 2 without merit. Disposition

of a motion for a change of venue lies

within the sound discretion of the trial

judge. Commonwealth v. Casper, 481 Pa.

143, 392 A. 2d 287 (1978). As a rule,

a defendant alleging prejudicial pre-trial

publicity must show actual prejudice.

An exception exists where pretrial

publicity is “so sustained, so pervasive,

so inflammatory, and so inculpatory as

to demand a change of venues..."

Commonwealth v, Frazier, 471 Pa. 121,

127, 369 A. 2d 1224, 1227 (1977). # The

trial judge makes the determination based

on the content of the publicity. Here

Judge Eshelman, in his Disposition of

19a

Defendant's Omnibus Pretrial Motions

for Relief, found the attendant publicity

"contained objective, non-inflammatory

reporting.” Finding of Fact 40. Absent

proof of actual prejudice, appellant's

second claim must fail.

Judgment of sentence affirmed.

William J. Steingraber

Steingraber argues: (1) the trial

court erred by refusing to suppress the

evidence; (2) prosecutorial misconduct

during closing argument mandates reversal;

(3) insufficient evidence introduced

by the Commonwealth against Steingraber

mandates removal (sic); (4) failure to

grant a change of venue or other relief

necessary to ensure a fair trial mandates

a reversal; and (5) remand for

resentencing of Steingraber is required

where the judge did not consider factors

individual to Steingraber. Judge

Eshelman, in his thorough opinion,

20a

resolved Issues 1, 2 and 3. After a

careful review of the record, we adopt

his reasoning. Issue 4 we have discussed

supra as regards appellant Santarelli.

The same reasoning applies here. As

regards Steingraber's fifth argument,

our review of the record satisfies us

that Judge Eshelman did give conscientious

consideration to the circumstances of

the offense and the background = and

character of Steingraber. See R. 1895a

- 1906a and R. 1912a - 1917a.

Judgment affirmed.

Wieand, J., Concurs in the Result.

FOOTNOTES:

135 Pa.C.S. §780-113(a)(16).

235 Pa.C.S. §780-113(a)(30).

318 Pa.C.S. §903(a)(i).

“the court in Dubry suggested that the facts

of the case would support a conviction for

conspiracy. 582 S.W. 2d at 844, However, the

criminal conspiracy sections of the Texas Penal

Code did not apply to violations of the Controlled

Substances Act. Id., cf. Commonwealth v.

Davenport, 307 Pa. Super. 102, 452 A. 2d 1058

(1982) (affirming convictions for criminal

conspiracy and unlawful delivery of a controlled

substance. )

2la

—

IN THE SUPERIOR COURT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA

Ve

VINCENT ANTHONY SANTARELLI,

Appellant

No. 543 Philadelphia 1983

COMMONWEALTH OF PENNSYLVANIA

Vv.

WILLIAM M. GUINTHER,

. Appellant

No. 714 Philadelphia 1983

COMMONWEALTH OF PENNSYLVANIA

Ve

WILLIAM JOSEPH STEINGRABER,

Appellant

No. 818 Philadelphia 1983

JUDGMENT

October 26, 1984

ON CONSIDERATION WHEREOF, it is

now here ordered and adjudged by this

Court that the above captioned matter,

of the Court of Common Pleas of BERKS

County be, and is AFFIRMED.

22a

5

IN THE COURT OF COMMON PLEAS OF

BERKS COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA

Ve

WILLIAM M. GUINTHER,

Defendant

Criminal No. 80181301

COMMONWEALTH OF PENNSYLVANIA

Ve

VINCENT SANTARELLI,

Defendant

Criminal No. 80181201

COMMONWEALTH OF PENNSYLVANIA

Ve

* WILLIAM JOSEPH STEINGRABER,

Defendant

Criminal No. 80181601

OPINION

W. RICHARD ESHELMAN, J.

December 21, 1982

Defendants were each charged by

information with possession of, and

possession with intent to deliver, a

23a

Schedule I controlled eubeteace,* namely,

marijuana, and also with conspiracy.

After hearings held thereon, defendants'

Omnibus Pretrial Motions for Relief were

denied, and on June 15, 1982,—. jury

selection in defendants' consolidated

trial commenced. On June 23, 1982, the

jury returned verdicts of guilty on all

charges against each defendant.

Defendants each filed motions for new

trial and/or arrest of judgment, argument

thereon was scheduled, supporting briefs

were filed, and defendants' posttrial

motions are now before this court for

disposition. In order to facilitate

analysis and discussion we have grouped

the numerous issues raised into several

broad categories.

I. Sufficiency of the evidence.

At the outset defendants Santarelli

and Steingraber contend that the evidence

was insufficient to sustain the verdicts,

24a

a

wel

and Steingraber also contends that the

verdicts were contrary to the weight

of the evidence.” Whether a_ verdict

is contrary to the weight of the evidence

is a determination within the discretion

of the trial court. Commonwealth _v.

Chapman, 255 Pa. Super. 265, 386 A. 2d

994 (1978). For a verdict to be contrary

to the weight of the evidence, the

evidence must be opposed to the finding

of guilt and not consistent with it.

Commonwealth v. Dale, 232 Pa. Super.

213, 335 Aw 2d 454 (1975). In determining

whether the evidence is sufficient to

sustain the verdict, the reviewing court

must accept as true all direct and

circumstantial evidence upon which the

jury could properly have based its

‘verdict, and if this evidence and the

inferences arising therefrom, when viewed

in the light most favorable to the

fommonwealth, are sufficient in law to

25a

establish beyond a reasonable doubt that

the defendant is guilty of the crimes

for which he has been found guilty, the

reviewing court will sustain the verdict.

Commonwealth v. Rose, 483 Pa. 382, 396

A. 2d 1221 (1979); Commonwealth Ve

Johnston, 258 Pa. Super. 429, 392 A.

2d 869 (1978).

The evidence adduced at trial may

be summarized as follows, In November,

1980 Wendell Mihalak was employed by

the Federal Aviation Administration (FAA)

r traffic controller at the

b--

as an a

Reading Airport in Reading, Pennsylvania

and had been so employed for approximately

twelve years (Heke 228-30.) Mihalak

knew defendant Guinther through several

parties given by Mihalak's boss’~ and

attended by both Mihalak and Guinther,

through Guinther's association with the

American Bonanza Society which is a flying

organization having an office building

at the Reading Airport, and also through

Guinther's status as a flight instructor,

and had spoken with Guinther over the

radio about a thousand times during the

preceding seven oor eight years (N.T.

229-31). Because of his familiarity

with Guinther's voice, Mihalak recognized

it when a man piloting a twin-engine

Baron 6729 Tango called him for take-off

taxi instructions on November 10, 1980

at 5:00 a.m. while Mihalak was on duty

at the Reading Airport (N.T. 231). In

response to Mihalak's query, Guinther

informed Mihalak that he was headed for

West Palm Beach, Florida, and engaged

in some further conversation with Mihalak

regarding tail winds before taking off

(N.T. 231).

On November 11, 1980 Raymond Gillman

was employed by the FAA and was working

as an air traffic control specialist

at the Vero Beach Airport's flight service

27a

station in Vero Beach, Florida _ &

304). After receiving a telephone call

that evening Gillman observed an aircraft

taxiing into the parking ramp area at

the Vero Beach Airport at approximately

8:15 p.m. (N.T. 304-05). From his vantage

point approximately two hundred feet

from where the aircraft was parked in

a well-lit area, and with the intermittent

aid of binoculars, Gillman noticed that

the aircraft bore the numbers’ N6729T

and that it appeared to be carrying

several large brown boxes in the cabin

area behind the pilot and co-pilot's

seats (N.T. 305-06, 308). Gillman also

Saw one individual get out of the

eirerett, which individual was a man

who appeared to be in his fifties, wore

a suit and tie, and walked with a very

pronounced limp (N.T. 306-07). Shortly

after exiting the aircraft this man

entered the flight service station, where

23a

he was observed by Gillman from a distance

of twenty-five feet (N.T. 307). Gillman

identified the individual who got out

of the aircraft N6729T as being the

defendant William Guinther (N.T. 307-08).

Approximately one-half hour after he

first saw the aircraft N6729T, Gillman

observed it taxiing out and away from

the parking ramp, and then it disappeared

from his view (N.T. 309).

On the evening of November 11, 1980

Officer Andrew Bradley of the Vero Beach

Police Department received a _ telephone

call, and as a result of that call, went

in his police vehicle to the Vero Beach

Airport for the purpose of stopping a

plane (N.T. 321). Once out on the taxiway

Officer Bradley observed an aircraft

bearing the numbers N6729T taxiing out

towards the main runway [Rute 324)%

He approached the plane from the front,

passed it on its left side, keeping pace

29a

with it as it continued to taxi (N.T.

S225 oes} Officer Bradley turned on

his police unit's siren and _ flashing

biue lights as he tnttielis approached

the aircraft, and kept them on as he

traveled alongside it (NTs 322-23).

Bradley also aimed his’ spotlight into

the cockpit, and was able to see the

pilot's face as the pilot turned towards

the light (N.T. 324). Bradley described

the pilot as a man in his early to

mid-fifties, with graying hair and

dark-rimmed, clear-lensed glasses, and

identified him as the defendant William

Guinther (N.T. 325). Bradley kept his

spotlight on and pointed at the cockpit

as he paralleled the plane, traveling

three or four feet off the right wing

tip at a speed of ten to fifteen miles

per hour for a distance of two hundred

and fifty to three hundred yards (N.T.

323-24, 326). He observed what he

30a

believed to be luggage behind the pilot's

seat and an umbrella handle in the cockpit

(N.T. 325-26). He also obtained a second

look at the piiot's face when the pilot

again turned to look at Bradley's police

vehicle (N.T. 326-27). As the aircraft

and Bradley's vehicle reached the end

of the taxiway, the former turned onto

the main runway, and Bradley cut across

a strip of grass in an attempt to get

in front of the plane (N.T. 324). He

was successful in his att2mpt, but was

obliged to move out of the way in order

to avoid being hit by the aircraft (N.T.

329). The plane then took off over the

roof of a second police vehicle which

had been dispatched to Officer Bradley's

aid (N.T. 330).

At 3:00 a.m. on November 12, 1980

Wendell Mihalak, while on duty at the

Reading Airport, received a radio call

from a pilot then flying over nearby

3la

Ephrata, Pennsylvania, and Mihalak

recognized his voice as being that of

the defendant William Guinther (N.T.

232). Using the call sign November 9488

Sierra, the pilot requested landing

instructions, which Mihalak supplied

(".T. 232) Following Mihalak's

instructions, the pilot landed and taxied

over to the west part of the ramp near

the American Bonanza Society building,

and Mihalak observed an individual exit

the aircraft, walk over to the Bonanza

Building, and turn on a light (N.T. 232).

Two or three minutes later Mihalak saw

a pickup truck without a cap or camper

on the back leave the area, and five

minutes after that Mihalak saw it return

(N.T. 232-33). Shortly thereafter Mihalak

noticed a large blue pickup truck with

a white cap or camper coming up a road

next to the Bonanza building (N.T. 232).

After stopping at a gate, this_ second

3Za

truck drove up to the aircraft,

approaching it from the front, and pulled

next to the plane's right side, remaining

there for five or ten minutes’ before

leaving via the same road it had arrived

(N.T. 234). In the half hour immediately

preceding the landing of the

above-mentioned aircraft, no other planes

landed at the Reading Airport, and in

the half hour immediately thereafter,

only one plane, a United States Customs

aircraft, landed (N.T. 234-35).

On November 11 and 12, 1980 George

Kontrabecki was a pilot and law

enforcement officer employed by United

States Customs and stationed in

Jacksonville, Florida (N.T. 444). On

the evening of November 11, Kontrabecki

took off from Jacksonville in a Customs

aircraft for the purpose of pursuing

another plane, and was accompanied on

this flight by Houston Allman, a Customs

33a

Air Officer who rode in the rear of the

Customs aircraft (N.T. 404, 445). After

landing his plane in Baltimore to refuel,

Kontrabecki continued on to the Reading

Airport, where he landed at approximately

3:30 a.m. on November 12 (N.T. 446).

Mihalak then directed Kontrabecki over

to the western part of the ramp near

the Bonanza Building, and as Kontrabecki

was taxiing in that direction he observed

a twin-engine aircraft bearing the numbers

N6729T parked in front of the building

and a bluish or greenish pickup truck

with a white camper shell backed up at

an angle to the aircraft's right side

(N.T. 235, 446-48, 451). By the time

Kontrabecki reached the ramp this pickup

truck became mobile, proceeding towards

the west gate without its lights on (N.T.

448-49). Kontrabecki followed the truck

in his plane to the vicinity of the west

gate, where the truck's lights were turned

34a

on (N.T. 449). The truck then proceeded

through the gate and down a hill out

of Kontrabecki's sight (N.T. 449).

At approximately 3:30 aeoM. on

November 12, 1980 State Troopers’ Leon

Huey and Louis Belsterling proceeded

to the Reading Airport in a patrol car,

traveling north on Route 183 (N.T. 555-56,

620). After passing the front entrance

to the airport, Trooper Huey, who was

driving, made a right hand turn _ onto

a service road leading to the west gate,

whereupon both Huey and Belsterling

observed a set of headlights coming

towards them from the vicinity of the

west gate (N.T. 556-57, 621). Both

officers watched these headlights

proceeding down the road towards their

patrol car, and within a few seconds

of stopping their vehicle at the first

intersection, were able to observe the

source of the headlights, Lele, a

35a

bluish-green pickup truck with a white

or light cap or camper which also arrived

at the same intersection and_ stopped

(N.T. 556-57, 563-65, 621-22). The pickup

truck then made a lefthand turn at the

intersection and proceeded towards Route

183, whereupon Huey made a U-turn in

the intersection and followed the truck

(N.T. 557-58). Huey continued to follow

the truck as it turned left onto Route

183, and was able to observe several

square~shaped packages in the rear portion

of the truck inside the camper (N.T.

558-59, 622). As the truck neared the

main entrance to the airport on Route

183 Huey turned the patrol vehicle's

red lights on, and the pickup truck pulled

over (N.T. 559, 622-23). Using his public

address system, Huey told the occupants

to get out of their vehicle and proceed

to the rear of the truck, which they

did EW e Ts 559-60). Both Huey and

36a

Belsterling identified the truck's

occupants as defendants William

Steingraber and Vincent Santarelli, the

former having exited the vehicle from

the driver's side and the latter from

the passenger's side (N.T. 560, 623-24,

639, 651-52). The police then instructed

the occupants to get back into their

vehicle and return to the area from which

they had just come, whereupon both

re-entered the truck and, followed by

Huey and Belsterling, proceeded back

up the service road and stopped a few

feet from the west gate (N.T. 561-62,

624~-26).

Three or four minutes after Customs

Officer George Kontrabecki lost’ sight

of the pickup truck which he initially

saw parked near the aircraft N6729T he

observed a pickup truck fitting the same

description coming back up the hill

towards the west gate, followed by a

37a

marked State Police vehicle (N.T. 451-53).

Customs Officer Houston Allman, while

Standing near the gate, saw the two men

in the vicinity of the pickup truck,

and identified them as defendants

Steingraber and Santarelli (N.T. 453-54).

Allman looked into the rear of the pickup

truck from the outside and saw numerous

packages enclosed in brown paper or boxes,

at least some of which were torn in

places, and through these tears was able

to see a substance protruding which

appeared to be marijuana (N.T. 406, 412,

421). Allman then opened the rear door

of the truck and being satisfied that

the substance was marijuana, he walked

over to the men who had been in the pickup

truck and read them their rights (N.T.

406). Kontrabecki also looked into the

back of the truck and saw what appeared

to be marijuana in a number of torn

packages, and subsequently observed,

38a

from the outside of the aircraft with

the aid of a flashlight, a small amount

of vegetable matter or debris resembling

marijuana on the floor inside the aircraft

N6729T (N.T. 453-55). In addition,

Kontrabecki tried the handles on_ the

passenger and cargo doors of the aircraft

N62729T, and found that he was able to

open them (N.T. 456-57).

On Novwember 12, 1980 Corporal Gary

Stiver of the Pennsylvania State Police

took rolled ink impressions of all ten

of defendant Guinther's fingerprints,

and transferred them to ae fingerprint

card (Exhibit 2) (N.T. 392-95). Corporal

Roman Petrosky, also of the Pennsylvania

State Police, testified that six latent

fingerprints lifted from inside the

aircraft N6729T matched various

fingerprints on Exhibit 2, and_ stated

that in his opinion, the prints’ found

inside the plane and those on Exhibit

39a

2 were made by the same person (N.T.

752-68). Paul Skrimcovsky, a criminalist

with the Pennsylvania State Police, tested

the debris (Exhibit 2) found inside the

aircraft N6729T, and the eleven packages

(Exhibit 10) removed from the _ pickup

truck, and found that all contained

marijuana and that the eleven packages

had a combined net weight of 343.6 pounds

(N.T. 846-52). Trooper Ronald Haberstroh,

a fourteen year member of the Pennsylvania

State Police Trcop L vice unit, testified

that in his opinion, possession of 343.6

pounds of marijuana is not consistent

with personal use (N.T. 869-72).

Defendant Santarelli presented no

evidence, but both defendants Steingraber

and Guinther presented reputation

testimony. Guinther presented two

witnesses who testified that they had

discussed Guinther's reputation with

members of the community, that these

40a

community members had expressed the

Opinion that Guinther was a truthful,

law-abiding individual, and that, to

the witneses' knowledge, no one had ever

expressed a contrary opinion (N.T.

923-26). Guinther's third witness was

unable to testify that he had heard others

express an opinion of Guinther as being

truthful and law-abiding (N.T. 917-21).

Defendant Steingraber presented one

witness who testified that he had never

discussed Steingraber's reputation for

honesty with anyone, and a second witness

who testified that she had discussed

Steingraber's reputation, knew that others

believed him to be a "good and honest"

person, and had never heard anyone express

a contrary opinion (N.T. 928-30).

The above-recited evidence,

particularly that relating to defendant

Guinther's taking off from Reading for

Florida in aircraft N6729T, his presence

4la

the following day at Vero Beach, Florida

in aircraft N6729T, which carried what

one witness described as large brown

boxes, his evasion of Vero Beach police,

his use of the incorrect call sign 9488

Sierra when landing in Reading, the

presence of the pickup truck’ shortly

thereafter next to aircraft N6729T for

five or ten minutes, the observation

by state police officers of the pickup

proceeding from the west gate onto Route

183 loaded with packages, which truck

was occupied by Steingraber and Santarelli

and which package contained 343.6 pounds

of marijuana, the presence of marijuana

residue and Guinther's fingerprints in

aircraft N6729T, and the fact that

possession of 343.6 pounds of marijuana

is not consistent with personal use of

such substance, was more than sufficient

evidence to allow the jury to conclude

that Guinther transported 343.6 pounds

42a

of marijuana from Vero Beach to Reading

in aircraft N6729T, that as pilot Guinther

had both the power and intent to control

the marijuana, that the marijuana was

transferred from this plane to the pickup

truck by Steingraber and Santarelli and

transported in the truck occupied by

them, that the latter two defendants

had the power and intent to control the

contraband while it was transferred to

and located and transported in the truck,

and that all of the above was’ done

pursuant to an agreement among the three

defendants to accomplish the same. Having

drawn the above conclusion, the jury

could properly find the defendants guilty

of possession of the controlled substance,

marijuana, possession with intent to

deliver it, and conspiracy to commit

these crimes,

We are not persuaded by the argument

of Santarelli, one of the two occupants

43a

Sen wets Tess

of the pickup truck, that the evidence

was insufficient to show his awareness

of and his intent and power to control

the marijuana. The number of packages

and iarge quantity of marijuana seized,

its being unloaded during a short period

of time from the aircraft into the pickup

truck and being immediately transported

from the site of the aircraft in the

pickup truck operating without headlights

as far as the west gate and thereafter

with headlights toward and onto Route

183, the truck being occupied by

Santarelli, the proximity of Santarelli

while in the truck to the contraband,

the exposure of the contraband in the

truck to plain view by virtue of the

torn packaging material, and the hour

and place of these events, all militate

against such a conclusion. These factors

refute Santarelli's argument that he

occupies a position similar to that of

44a

an unfortunate hitchhiker. In short,

considering the totality of the

circumstances the jury properly inferred

and concluded from the evidence that

Santarelli possessed the contraband,

possessed it with intent to deliver it,

and conspired to do. so. Commonwealth

ve Cash, 240 Pa. Super. 123, 367 A. 24

726 (1976); Commonwealth v. Gilchrist,

255 Pa. Super. 252, 386 A. 2d 603 (1978).

For all of the foregoing reasons, we

conclude that the evidence is consistent

with and more than sufficient to sustain

the findings of guilt.”

II. Suppression of Evidence.

All three defendants next contend

that the pretrial hearing judge erred

in refusing to suppress the eleven

packages of marijuana (Exhibit 10) removed

from the pickup truck and the marijuana

debris (Exhibit 12) removed from the

aircraft N6729T, all of which evidence,

45a

defendants argue, was seized in violation

of their constitutional right to be

protected against unreasonable’ searches

and seizures. After conducting five

days of hearings on this and other issues,

the pretrial hearing judge on May 26,

1982 entered Findings of Fact and

Conclusions of Law disposing of, inter

alia, defendants’ motions to_- suppress

evidence.

Initially, it «de: waeer » that -- the

pretrial hearing judge properly concluded,

in Conclusion of Law No. that

defendants lacked "standing to challenge

the legality of observations, inspections,

searches and seizures by United States

Customs and state police officers

involving the aircraft and pickup truck

and contraband (marijuana) located

therein, as each of said defendants.

- e failed to establish that he had a

reasonable expectation ot privacy in

46a

either vehicle.’

Defendants, though

charged with possessory offenses, may

no longer claim “automatic standing”

under Jones v. United States, 362 U.S.

257, 80 S.~ Ct. 725, 4 Le Ede 26d 697

(1960), as the Jones rule has. been

repudiated by the United States Supreme

Court in United States v. Salvucci, 448

U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d

619 (1980). Under Salvucci a defendant

musc demonstrate a reasonable expectation

of privacy in goods seized or places

searched in order to establish standing,

and “mere possession” of goods, without

more, is not determinative of such an

expectation. Further, even prior to

Salvucci, the United States Supreme Court

ruled that a defendant's legitimate

presence on the premises searched does

not automatically confer upon him a

reasonable expectation of privacy therein.

Rakas v. Illinois, 439 U.S. 128, 99 S.

47a

Ct. 421, 58 L. Ed. 2d 387 (1978).

we reject the argument advanced

by defendants that the automatic standing

rule remains the law in Pennsylvania

despite its repudiation in Salvucci.

The essence of defendant's contention

is that when the Pennsylvania Supreme

Court adopted the automatic standing

rule in Commonwealth v. Weeden, 457 Pa.

436, 322 A. 2d 343 (1974), it did so

not only as a matter of federal

constitutional law, but also as a matter

of state constitutional law.

We can find absolutely no support

for this argument in either Weeden or

the cases citing it. That part of the

Weeden opinion dealing with the adoption

of the automatic standing rule in

Pennsylvania discussed only Jones’ and

other federal cases. No Pennsylvania

cases, statutes, or constitutional

provisions are cited as providing even

48a

a partial basis for the rule's adoption.

Further, in Commonwealth v. Treftz, 465

Pa. 614, 626, 351 A. 2d 265, 270, on.

11 (1976), a case citing Weeden and

discussing standing in general, the

Pennsylvania Supreme Court said that

"[ijn Commonwealth _v. Weeden, supra,

the Court's decision to grant standing

° e P rested on the Jones v. United

States, supra, "automatic standing'

doctrine." It is thus evident from Weeden

and Treftz that automatic standing in

Pennsylvania was grounded on federal

case law construing the Fourth Amendment,

and not on Article I, Section 8 of the

Pennsylvania Constitution.

The Superior Court of Pennsylvania

has confirmed this view of Weeden by

its decision in Commonwealth v. Sell,

288 Pa. Super. 371, 432 A. 2d 206 (1981).

In Sell, a defendant who otherwise would

have been entitled to automatic standing

49a

was denied the benefit of that rule on

the basis of the United States Supreme

Court's holding in Salvucci, and was

instead required to establish "actual

standing” premised upon a_ legitimate

expectation of privacy. Further, Sell

was cited with approval in Commonwealth

v. Eliff, 300 Pa. Super. 423, 446 A.

2d 927 (1982), wherein the Superior Court

again stated that a defendant charged

with a possessory offense must nonetheless

demonstrate "actual standing" in order

to challenge an alleged Fourth Amendment

violation. Thus, the clear implication

of these two Superior Court opinions

is that automatic standing in Pennsylvania

was originally premised upon federal

law alone, and that Salvucci not only

overruled the automatic standing rule

of Jones but effectively repudiated Weeden

as well.

Turning to the facts in the instant

50a

case, defendants have presented absolutely

no evidence which would establish their

legitimate expectations of privacy in

either of the places observed and searched

or in the contraband seized. None of

the defendants have alleged or proven

ownership of the truck, airplane, or

contraband, and in fact the pretrial

hearing testimony of United States Customs

Officer Kontrabecki was that the aircraft

was registered to a Page Smith of

Mattsville, North Carolina, and that

the truck was registered to a Joanne

Esterly, identified by Santarelli as

his daughter (Pretrial Suppression Notes

of Testimony [S.T.] 204, 175; Findings

of Fact Noo. 37 and 32). The record

does not indicate whether defendant

Guinther had been given permission to

pilot the aircraft by its owner or whether

Santarelli and Steingraber had permission

to use the truck, although evidence of

5la

such permission, even if presented, wouid

not necessarily establish defendants’

standing. Rakas __v. Illinois, supra.

Further, defendants can hardly claim

a reasonable expectation of privacy in

the truck and its contents when Santarelli

and Steingraber ailowed the marijuana

to be exposed to plain view through torn

wrapping paper and an uncurtained window

in the truck. Also, defendants cannot

claim an expectation of privacy in the

aircraft, since it was abandoned on the

airport parking strip and the marijuana

debris therein was also plainly visible

from the outside through its windows.

Further, although Guinther challenges

the search of the truck, he has not even

alleged that he was ever in or had any

rights with respect to the truck.

Applying the applicable test to all the

facts and circumstances we must confirm

our finding that defendants have _ no

52a

29 ye EMT

standing to challenge the actions taken

by state police and customs officers

with respect to the pickup truck and

the aircraft N6729T.

However, the pretrial hearing judge

also properly found that even if

defendants had any standing, the

warrantless observations, inspections,

searches, and seizures which took place

in this case could nonetheless be

justified on several grounds the first

of these being a customs inspection

rationale. Pretrial hearing testimony

of Feceral Aviation Administration (FAA)

personnel, U.S. Customs Officers, Vero

Beach police and Pennsylvania State

police, as reflected by more detailed

Findings of Fact Nos. 2 through 33,

established in summary that aircraft

N6729T was tracked in flight by the FAA's

Miami Center in Miami, Florida, from

a point approximately 50 miles southeast

53a

a cece k

of Bimini Island in the Bahamas to Vero

Beach Airport, Florida, where FAA

personnel observed it land loaded with

brown boxes in the cabin; that gasoline

was purchased and weather instructions

between Vero Beach and Reading were

obtained and the aircraft took off

notwithstanding efforts of the Vero Beach

police to detain the plane for customs

inspection; that the aircraft had not

given notice of a flight plan, had not

requested customs inspection, and _ had

not identified itself by way of

"squawker"; that the aircraft was tracked

by the FAA's Miami Center north toward

Jacksonville; that all of the above

information was furnished by FAA's Miami

Center to U.S. Customs officers who so

informed George Kontrabecki, a U.S.

Customs pilot and enforcement officer

at Jacksonville; that information as

to spotting and location of aircraft

54a

by FAA's Miami Center had proven reliable

in the past; that Kontrabecki was

furnished by the FAA's Jacksonville Center

with a radar vector which enabled hin,

accompanied by U.S. Customs Officers

Allman and Butler, to identify the

aircraft and pursue it in a U.S. Customs

plane north toward Reading; that

Kontrabecki requested the FAA to direct

the police to detain the pursued aircraft

N6729T at Reading Airport and when the

customs plane was landing at Reading

Airport Kontrabecki observed a bluish-

green pickup truck with a white camper

back up to the aircraft and then leave

the area; that upon aircraft N6729T

landing at Reading Airport, FAA controller

Mihalak at Reading, on request of the

FAA's New York Center and of Kontrabecki,

directed the state police on authority

of U.S. Customs to detain the aircraft

which had just landed at Reading and

55a

the persons involved, as well as to detain

a bluish-green pickup truck with a white

camper which was leaving the airport

area and have it return to the airport

(S.T. 353-354), which information was

relayed by the state police dispatcher

Zeller to state police officers Huey

and Belsterling (S.T. 506-507, 516, 521);

that Huey and Belsterling observed the

described pickup truck leaving the airport

and proceeding on Route 183 and from

the outside of the truck observed torn

packages loaded in the truck with brown

vegetable material protruding which

appeared to be marijuana; that Huey and

Belsterling then stopped the truck which

was occupied by defendants Santarelli

and Steingraber and instructed them to

return to where they came from; that

upon return to the airport area U.S.

Customs and police officers observed

from the outside of the truck that it

56a

was loaded with packages of what appeared

to be marijuana, resulting in seizure

of the truck and contraband; and that

observation of the interior of aircraft

N6729T from outside by U.S. Customs

Officer Kontrabecki disclosed what

appeared to be marijuana inside the

aircraft resulting in seizure of the

aircraft and contraband.

These facts were clearly sufficient

to support the conclusion of the pretrial

hearing judge that the aircraft and pickup

truck were observed, inspected, searched,

and seized "at the functional equivalent

of the border pursuant to a lawful customs

inspection and seizure by authorized

U.S. Customs officers in possession of

reliable information allowing them _ to

conclude or to infer with a high degree

of probability or with reasonable

certainty that a border crossing had

taken. place." (Conclusion of Law No.

57a

2(a)). Once customs officials obtain

sufficient information that a particular

vehicle or aircraft has crossed the United

States border, they may search that

vehicle or aircraft at the border or

its functional equivalent without a

warrant and without probable cause to

believe that the vehicle or aircraft

has been employed by its occupants in

criminal activity. United States _ vv,

Stone, 659 F. 24 569 (Sth Cie. 1961)

Usited States vv... ivev, 546 Ff. 2¢é i139

(Sth. . Cars. 397 3d< See also 19 C.F.R.

§162.11. Although Reading, Pennsylvania

is obviously removed from the United

States border, it was nonetheless’ the

first place in which customs officials

were afforded an opportunity to conduct

an inspection of the aircraft from the

time it was first sighted 50 miles

southeast of Bimini Island in the Bahamas,

after which it crossed the border and

58a

landed at Vero’ Beach, Florida, where

it took off shortly thereafter

notwithstanding police efforts to_ stop

it for customs inspection, and flew to

the Reading airport. Further, the flight

of the plane from the time it was first

sighted was monitored by FAA personnel

and was under visual surveillance part

of the time by U.S. Customs’ pilot

Kontrabecki, all as described in Findings

of Fact Nos. 3 through 20. Under the

circumstances any contention that

Kontrabecki lacked sufficient information

to conclude that the plane he _ pursued

and searched was the same plane that

was sighted in the Bahamas and landed

at Vero Beach Airport and then at the

Reading Airport is clearly without merit.

Therefore, for purposes of this case,

Reading was located at the functional

equivalent of the border.

Although the pickup truck itself

59a

vig DANG ah iM acting painters, 4 «ean gabe

FETT HES ee

Sed ome

never crossed the border, shortly after

aircraft N6729T landed, the truck was

observed by Kontrabecki at the Reading

airport stopped alongside of aircraft

N6729T, which did make such a crossing.

Also, in addition to all of the other

information known to him, Kontrabecki

had been informed that packages or boxes

were initially observed inside the plane

at Vero Beach. Shortly after Kontrabecki

arrived in Reading and observed the pickup

truck stopped alongside the plane, he

and U.S. Customs Officer Allman observed

packages or boxes inside the pickup truck,

and immediately thereafter Kontrabecki

observed that there were no longer any

packages or boxes in the aircraft. Under

all the facts and circumstances, the

nexus becween the truck and the border

was sufficient to justify the search

of the truck and the aircraft under a

customs inspection rationale. United

60a

amie iil

States _v. Lueck, 678 F. 2d 895 (llth

Cir. 1982).

Clearly, then, the status of

Kontrabecki and of Allman as authorized

United States Customs Officers justified

the actions they took in observing,

inspecting, searching, and seizing both

the pickup truck and the aircraft without

a warrant. Further, Kontrabecki and

Allman, as Customs Officers, on the basis

of reliable information received by them

and their observations of che aircraft

and the truck, could properly request

the assistance of Pennsylvania State

Police Officers Huey and Belsterling

in stopping the truck as it left the

Airport, the assistance of Huey in

observing, inspecting, searching, and

seizing the truck and aircraft, dusting

the aircraft for fingerprints, and

collecting debris from the aircraft.

See United States _v. Ivey, supra. By

6la

acting at the request of Customs Officers,

the state police officers became the

authorized "agents" of United States

Customs, and their actions taken in

compliance with the request constituted

actions of Customs Officers. For all

of the above reasons we conclude that

the facts in this case satisfy the

requirements for a valid Customs

inspection, search and seizure.

Additionally, the observations,

inspections, searches, and seizures which

occurred in the instant case can all

be sustained on traditional search and

seizure grounds. Troopers Huey and

Belsterling clearly possessed sufficient

reliable information obtained from state

police broadcasts relaying the United

States Customs request to detain the

aircraft at Reading Airport and to stop

the described pickup truck leaving the

airport and have it return to the airport,

62a

as well as information obtained from

personal observations of the described

pickup truck departing the airport and

of apparent contraband being transported

by the truck, to conclude that criminal

activity was afoot. Troopers Huey and

Belsterling were therefore justified

in stopping the truck just outside the

main gate to the Reading Airport and

temporarily detaining truck occupants

Steingraber and Santarelli by requesting

them to “return to the area from which

they had just come," which constituted

a proper “intermediate response" required

for further investigation. See

Commonwealth v. Johnson, 275 Pa. Super.

343, 418 A. 2d 754 (1980).

Thereafter, Trooper Huey and Customs

Officer Allman had probable cause to

search and seize the pickup truck and

its contents and to arrest its occupants

by virtue of their close range

63a

observations, made while outside the

truck, of apparent marijuana therein.

These observations, combined with prior

observations’ and reliable information

obtained as set forth above and in

Findings of Fact, certainly justified

Huey and Allman in concluding’ that

defendants Santarelli and Steingraber

were committing or had committed a crime.

Similarly, Customs Officer Kontrabecki

had probable cause to seize the aircraft,

authorize its search, and seize the

marijuana therein when he observed, while

standing outside the aircraft just after

having observed the packages or boxes

of apparent marijuana in the pickup truck,

that the plane's seats were arranged

so as to provide for a large cargo area

which no longer contained packages or

boxes and that apparent marijuana was

present on the floor between the seats.

These observations, together with

64a

Kontrabecki's prior observations of

movements of the aircraft and pickup

truck and reliable information received

by him regarding the plane's flight,

as set forth above and in Findings of

Fact, warranted Kontrabecki's conclusion

that the plane had been used in the

commission of a crime.

The fact that contraband was in

plain view within both the aircraft and

truck not only provided investigating

officers with probable cause to search

and seize, but also made a warrant

unnecessary. Although the views of the

contraband obtained by police and customs

officers did not constitute "inadvertent"

observations occurring during a lawful

intrusion into a constitutionally

protected area, but rather occurred before

any such intrusion while investigating

officers were outside the truck and plane,

the warrantless seizure of the marijuana

65a

was nonetheless justified on, the basis

of the exigent circumstances which

attended the search of the truck and

plane, both of which are movable vehicles.

Commonwealth v. Adams, 234 Pa. Super.

4754) > 962)... Rs: -26 806: » (1975). See also

United States v. Ross, 456 U.S. 798,

102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982),

and cases cited therein.

Even assuming that the stopping

by State Police Officers Huey and

Belsterling of the pickup truck = and

instructing occupants Steingraber and

Santarelli to return to the area from

which they had just come is viewed as

an arrest, rather than a stopping and

detention for investigatory purposes,

there vas probable cause for making such

arrest. At the time Customs Officer

Kontrabecki requested that the local

police be directed to stop the truck,

he was in possession of sufficient

66a

reliable information regarding the plane's

flight and had made sufficient personal

observations while taxiing into the

Reading Airport of the aircraft and pickup

truck, to conclude that a crime had been

or was being committed. His knowledge

alone, therefore, was sufficient to supply

probable cause, irrespective of what

Huey and Belsterling knew.

In any event, Officers Huey and

Belsterling themselves had probable cause

to arrest by virtue of the _ reliable

information they received via state police

broadcast, the fact that the truck and

its movement met the description given

by the police broadcast, their personal

observations made from outside the truck

of apparent contraband iki transported

in the truck, and their knowledge as

trained police officers of the modes

and patterns of operations of drug

traffickers, Commonwealth v. Fiore, 281

67a

Pa. Super. 1, 421 Aw 2d 1116 (1980);

Commonwealth v., Allen, 287 Pa. Super.

88, 429 A. 2d 1113 (1981), wherefore

the seizure of the marijuana was

incidental to such arrest.

Defendants raise three other

contentions concerning the ruling of

the pretrial hearing judge denying

suppression of the marijuana seized.

First, although we conclude that

defendants lacked standing to object

to the searches and seizures involving

the aircraft and truck and contraband,

we nevertheless will discuss briefly

defendants’ contentions that the hearsay

evidence relied upon by the _ pretrial

hearing judge to substantiate his

conclusion that investigating officers

had probable cause to search the aircraft

and truck did not meet the requirements

of the Aguilar-Spinelli test. Briefly

stated, these requirements in effect

68a

prevent law enforcement authorities from

acting on an informant's “tip”™ without

being apprised of the informant's basis

for concluding that a suspect possessed

contraband and the reasons for believing

the informant to be reliable. See Aguilar

v.= Texas, 378 U.S. 108, 84 S. Ct. 1509,

12 Le. Eds 2d 723 (1964) and Spinelli

v ni tates, 393 U.S. 410, 89 S.

Ct. 584, 21 L. Ed. 2d 637 (1969).

Although the requirements of Aguilar

and Spinelli are to be strictly applied

when confidential, unidentified informants

are the source of information, as was

the case in Aguiler and Spinelli, it

has been held that the Aguilar-Spinelli

test need not be applied to a named

citizen who comes forward with information

whereby the police should be permitted

to assume they are dealing with a credible

person in the absence of special

circumstances suggesting otherwise.

69a

Commonwealth v. Sudler, 496 Pa. 295,

436 A. 2d 1376 (1981). See LaFave _ on

Search and Seizure, Vol. 1, §3.5. This

same consideration should apply, and

even more so, when the informants are

FAA personnel, U.S. Customs Officers

and police officers gathering and

furnishing information in the course

of performing their official duties,

as in the instant case. The reasons

for crediting such information are self-

evident, and indeed, law enforcement

officers and related agencies, in the

absence of special circumstances

indicating otherwise, could not operate

effectively were they required to first

verify every bit of information furnished

through official channels before relying

and acting upon such information.

In any event, we conclude that the

requirements of Aguilar-Spinelli were

satisfied in the instant case in that

70a

the police broadcast to stop and have

the pickup truck return to the airport

at the request of U.S. Customs was based

on detailed circumstances supplied by

reliable FAA, U.S. Customs and Vero Beach

police personnel through official

channels, which along with personal

observations by U.S. Customs Officer

Kontrabecki constituted probable cause

for his request that the police stop

and detain the truck, and the state police

acted properly by relying thereon and

complying therewith. In addition, the

observations by the police officers Huey

and Belsterling of the pickup’ truck

leaving the airport transporting numerous

packages of apparent marijuane clearly

gave rise not only to reasonable suspicion

that criminal activity was afoot but

in fact constituted sufficient probable

cause for seizure of the contraband and

making an arrest. Upon return of the

7la

pickup truck to the airport’ further

observations by police and U.S. Customs

officers of the packages of apparent

marijuana in the truck provided additional

probable cause for seizure of the

contraband and arrest of the occupants.

The courts have repeatedly held

that law enforcement officers may rely

on information received by police

broadcast for making an arrest based

on probable cause, or for stopping and

temporarily detaining for investigation

based on reasonable suspicion that

criminal activity may be afoot, and in

the latter case 4 upon further

observation and investigation giving

rise to probable cause, an arrest may

be made. Commonwealth v. Selp, 285 Pa.

Super. 551, 428 A. 2d 183 (1981);

Commonwealth v. Benson, 239 Pa. Super.

100, 361 A. 2d 695 (1976).

Second, defendants Guinther and

72a

Steingraber challenge findings of fact

Nos. 16, 19, and 34 as being unsupported

by the evidence. However, defendants’

contentions in this regard are refuted

by the record (S.T. 154-55, 627-28,

396-401; 157-64; 454, 599-601, 665-68).

Finally, defendant Guinther contends,

citing Commonwealth v. Sexton, 485 Pa.

17, 400 A. 2d 1289 (1979), that error

occurred when he was denied a lineup

prior to being identified by Officer

Bradley at the preliminary hearing.

However, it is settled that a defendant

has no constitutional right to a pretrial

lineup. Commonwealth v. Liverpool, 294

Pa. Super. 133, 439 A. 2d 786 (1982).

Further, Sexton is distinguishable from

the instant case in that Officer Bradley,

unlike the identifying witness in Sexton,

was not the only witness supplying

evidence identifying defendant Guinther

for the crimes’ charged. Commonwealth

73a

v. Liverpool, 439 A. 2d at 789, n. 10.

In any event, Guinther was not prejudiced

by his not being afforded a lineup, as

the circumstances surrounding Bradley's

original observation of Guinther, set

forth in Finding of Fact 9, clearly

demonstrate that Bradley's identification

testimony had a basis independent of

any suggestiveness inherent in the

preliminary hearing and of events

occurring in the Philadelphia Customs

Office, and there was therefore no

substantial likelihood of irreparable

misidentification. (Finding of Fact

No. 38; Conclusion of Law No. 4). See

Commonwealth v. Davis, 293 Pa. Super.

447, 439 A. 2d 195 (1982).

III. Change of Venue and Related Issues.

Defendants next argue that the

pretrial hearing judge and trial judge

erred ir -efusing to grant defendants'

motions tor change of venue and/or in

74a

refusing to take certain other measures

allegedly necessary to ensure that

pretrial publicity did not prejudice

defendants’ right to a fair trial. The

relevant facts are as follows: On July

7-8, August 5-6, and September 9, 1981,

the pretrial hearing judge held hearings

(hereinafter suppression hearings) on

defendants’ Omnibus Pretrial Motions

for Relief. Defendants’ motions to close

said hearings to the press and public

were denied (Sele Be Defendants

Santarelli and Steingraber, but not

Guinther, included in their pretrial

motions a motion for change of venue,

and in support thereof defendant

Santarelli introduced an unnumbered

exhibit, which the court ordered on

September 9, 1981 to be made part of

the Santarelli case record, consisting

of twenty-one articles and/or photographs

from Reading local newspapers dealing

with this case. On May 26, 1982, the

pretrial hearing judge filed Findings

of Fact and Conclusions of Law denying,

inter alia, the requested change of venue,

and by attached order impounded said

findings and conclusions pursuant to

Pa. R. Crim. P. 323.

On June 15, 1982, the first day

of jury selection, defense counsel brought

to the attention of the trial judge an

article appearing in that morning's

edition of The Reading Times’ entitled

"Jury Selection to Begin in Pot Trial".

(Pretrial Exhibit 1). Defendants again

requested change in venue, or that trial

be continued until June 18, when a new

jury panel would be called in, or that

the court grant additional peremptory

challenges, in that order of preference.

The trial judge denied the motions for

change of venue and continuance, but

granted each defendant five, instead

76a

of three, peremptory challenges (Voir

Dire 4). By agreement of counsel voir

dire was conducted off the record unless

and unt#l otherwise requested. On June

16, after seventy-eight prospective jurors

had been questioned, voir dire was

completed and the jury of twelve plus

two alternates was sworn.

Defendants initially contend that

the pretrial hearing judge erred in

refusing to close the suppression hearings

to the press and public. However, this

refusal was justified in view of the

strong preference for open suppression

hearings expressed in Commonwealth _v,

Hayes, 489 Pa. 419, 414 A. 2d 318 (1980).

Further, a substantial portion of the

testimony presented at the suppression

hearings, including the origin of the

suspect plane, the failure of its pilot

to comply with customs regulations, and

the tracking of its course northward

77a

by the FAA, the seizure of marijuana

from the aircraft piloted by Guinther

and from the pickup truck occupied by

Steingraber and Santarelli, had already

become a matter of public record at the

preliminary hearing (Preliminary Hearing

Transcript 76-97); therefore, to have

closed the suppression hearings would

have served little if any purpose.

Finally, more than nine months (September

10, 1981 to June 15, 1982) intervened

between the last publicity evidenced

by defendant Santarelli's unnumbered

exhibit of newspaper articles and

photographs, and the start of defendants’

trial, which time period was more than

sufficient to allow the effects of

pretrial publicity to dissipate. The

fact that the pretrial hearing judge

impounded his disposition of defendants'

pretrial motions is no indication, as

contended by defendants, that he believed

78a

his refusal to close the suppression

hearings to have been incorrect; rather

this action was a legitimate step taken

pursuant to Pa. R. Crim. P. 323 to ensure

that publicity did not occur as a result

of the filing of the disposition of

pretrial motions, and that the beneficial

effects of the nine month “cooling off"

period between September 10, 1981 and

June 15, 1982 were not lessened. Further,

such impounding was in harmony with

defendants' Original request that’ the

pretrial hearing be closed.

As concerns defendants’ motions

for change of venue, it is settled that

the disposition of such motions lies

within the sound discretion of the trial

judge, whose ruling will not be disturbed

absent an abuse of that discretion.

Commonwealth ov. Casper, 481 Pa. 143,

392 «hs 2d 287 (1978). Generally, a

defendant seeking to demonstrate that

79a

pretrial publicity deprived him of a

fair trial must show actual prejudice

in the empaneling of the jury, i.e.,

that one or more of the jurors’ formed

a fixed opinion of defendant's’ guilt

or innocence as a result of such

publicity. Commonwealth v. Casper, supra;

Commonwealth v. Kichline, 468 Pa. 265,

361 A. 2d 282 (1976). The only exception

to this rule occurs where pretrial

publicity is "so sustained, so pervasive,

so inflammatory, and so inculpatory as

to demand a change of venue without

putting the defendant to any burden of

establishing a nexus between the publicity

and actual jury prejudice." Commonwealth

e. _Peeaster, GTi Pes. 22k, dat, 369. As

2d 1224, 1227 06(1977). In order_ to

ascertain whether such a situation exists,

the trial judge must first consider the

content of the publicity, and specifically

must determine whether it is inflammatory

80a

and emotional in nature, whether it refers

to any prior criminal record the defendant

may have had, and whether it reports

any confessions allegedly made by the

defendant. Commonwealth V> Frazier,

Supra. However, the pretrial hearing

judge, in Finding of Fact 40 of his

Disposition of Defendants' Omnibus

Pretrial Motions for Relief, properly

found that the publicity which attended

this case contained none of the

prejudicial elements enumerated above.

Therefore, jury prejudice cannot be

presumed, and defendants must demonstrate

its existence in order to prevail.

Defendants argue that the pretrial

hearing judge, in his Findings of Fact

and Conclusions of Law disposing of

defendants’ pretrial motions, should

have made some determination as to how

much of the pretrial publicity stemmed

from information provided by police and

8la

other prosecutorial officers. We do

not take such a broad view of the case

law. Although some cases do seem to

Suggest that the fact that any publicity

concerning a defendant's case can be

traced to official sources is a

consideration favoring change of venue,

see, e@.2., Commonwealth v. Kivlin, 267

Pa. Super. 270, 406 A. 2d 799 (1979),

other cases merely suggest that official

reports to the news media become a concern

only when they deal with inherently

prejudicial material such as that already

mentioned above. Commonwealth v. Casper,

supra; Commonwealth v. Pierce, 451 Pa.

190, 303 A. 2d 209 (1973). See also

l R. Wasserbly, Pennsylvania Criminal

Practice §1108 (1981). Our research

leads us to conclude that the latter

is the better view. Therefore, once

the pretrial hearing judge had concluded

that the publicity of record contained

82a

none of the three types of prejudicial

material previously mentioned, further

analysis regarding the source of such

(non-existent) publicity was of course

precluded.

The voir dire transcript in the

instant case indicates that all counsel

were afforded ample opportunity to inquire

into the jury panel's exposure to pretrial

publicity, and that every prospective

juror who stated that he or she had formed

a fixed opinion of defendants’ guilt

or innocence was successfully challenged

for cause. Although nineteen of seventy-

eight jurors questioned admitted to having

a fixed opinion and were excused,” this

does not in and of itself demonstrate

prejudice. Commonwealth v. Smith, 480

Pa. 524, 391 A. 2d 1009 (1978).

Commonwealth v. Cohen, 489 Pa. 167, 413

A. 2d 1066 (1980), cited by defendants

and which held that a refusal to change

83a

venue was an abuse of discretion where

two-thirds of the jurors questioned had

formed an opinion concerning defendant's

guilt or innocence, and 53% were excused

for irrevocable prejudgment of the case,

is clearly distinguishable on its facts.

Most importantly, only 24% of the jurors

questioned had fixed an opinion of

defendant's guilt or innocence, a

percentage less than half the size of

that in Cohen. Secondly, the publicity

surrounding Cohen was highly inflammatory,

as evidenced, inter alia, by the repeated

media labeling of defendant's crime as

a "contract killing," reports that

defendant was the only one of three

co-defendants able to afford bail, news

stories attributing delay in the

proceedings to defendant, and the

widespread coverage given certain

intemperate remarks ailegedly made by

the District Attorney and his staff.

84a

Further, there was an inadequate "cooling

off" period in Cohen prior to trial.

In short, Cohen must be read in light

of its facts, and it does not compel

a finding of jury prejudice in the instant

case.

Such a finding is likewise not

mandated by the responses of prospective

jurors Joyce Adam and Ronald Haas to

a voir dire question regarding their

ability to render a fair verdict in the

case. Both individuals said they could

not, Ms. Adam because she knew a great

many details about defendants' case,

was involved in youth counseling, and

was aware of the effects of substances

such as marijuana on young people, and

Mr. Haas because he "knew defendants

too well." (Voir Dire 9). Neither Ms.

Adam nor Mr. Haas was selected to serve

on defendants’ jury, and although their

statements were made in the presence

85a

of some jurors who did ultimately serve,

Mr. Haas' response was merely a neutral

statement indicating his familiarity

with defendants, rather than any positive

or negative assessment of their

characters, and Ms. Adam's answer, in

addition to disclosure of her familiarity

with the details of the case, was simply

a statement of awareness of the effects

of marijuana on young people, which is

a matter of common knowledge among members

of the general public, and was not

prejudicial so as to require the dismissal

of the entire jury panel. This is

especially true where, as here,

defendants' challenges for cause were

liberally allowed, and the voir dire

record is devoid of any indication that

anyone having a fixed opinion of

defendants’ guilt or innocence was seated

on the jury.

A change of venue was also not

86a

required by the publication, during and

immediately prior to voir dire, of several

articles in Reading local newspapers

(Pretrial Exhibits 1, 2 and 3), which

articles were substantially a summary

of publicity regarding defendants' case

Following a nine month media silence,

Defendants were permitted to question

prospective jurors regarding their

exposure to this particular publicity,

and the trial judge allowed each defendant

five, instead of three, peremptory

challenges. The defendants, who exercised

their challenges jointly, used only

thirteen of an allowable fifteen

peremptory challenges, and only two of

an allowable three peremptory challenges

for alternate jurors. (Clerk's Jury

List filed to Commonwealth vv. Vincent

A. Santarelli, No. 80181201). To have

granted a continuance until a new jury

panel could be brought in a few days

87a

later, as requested by defendants, would

have served no purpose, since exposure

to Pretrial Exhibits 1, 2, and 3 was

just as likely among members of a new

panel as among members of the original.

In any event, defendants can demonstrate

no prejudice since none of the fifteen

jurors who admitted reading about

defendants’ case in June 15 or 16's

newspapers was selected to serve.

Throughout the trial defendants

offered into evidence as exhibits various

newspaper clippings pertaining to this

case. These were numbered Pretrial

Exhibits 4 et seq. for consistency's

sake and to avoid confusion with other

trial exhibits. Although defendants

also cite the prejudicial effect of these

later "pretrial" exhibits, we note that

they were substantially factual accounts

of the evidence presented at trial.

Further, there is no indication whatsoever

wd

that any juror saw these articles and,

indeed, the judge continually admonished

the jury not to read or listen to

information concerning the case from

any source. In fact, no positive response

was received when, at the request of

defendants, the trial judge specifically

asked the jury of twelve plus two

alternates whether any of them had read

Pretrial Exhibit 4 (N.T. 809-11).

Finally, the fact that certain

prospective jurors, not selected to serve,

admitted to having participated in

discussions of this case while gathered

in the jury assembly room does not require

A finding of jury prejudice. One

individual taking part in such a

discussion indicated that the concern

of those involved was with whether or

not they would be chosen to sit on

defendants’ case as opposed to having

nothing to occupy their time (Voir Dire

89a

159-60). Further, in Commonwealth v.

Brantner, 486 Pa. 518, 525, 406 A. 2d

1011, 1013 (1979), the Supreme Court

of Pennsylvania dealt with this same

issue by affirming the trial court's

denial of change of venue, and stated

instead that "prospective jurors’ [need

not] be free of all knowledge of the

facts and circumstances surrounding the

incident which forms the basis of the

triel.”

In any event, after each group of

selected jurors was announced, the trial

judge admonished them not to discuss

the case with anyone, or read or listen

to any information about it. Thereafter,

upon completion of jury selection the

trial judge asked the twelve jurors and

two alternates whether any of them had

discussed the case since the time he

had instructed them not to do so, and

when no affirmative response was received,

90a

the jury was sworn (Voir Dire 197).

Thereafter, the court immediately

instructed the jurors that the disposition

of the case must be based solely upon

the evidence and instructions on_ the

law without allowing anything else to

influence their verdict (Voir Dire 197-

199). For all of the above’ reasons,

defendants' requests for a change of

venue or continuance were not required,

and these motions were properly denied.

IV. Opening and Closing Speeches

of the Assistant District Attorney

Defendants next contend that’ the

assistant district attorney made improper

comments in his opening and closing

speeches, and that these comments deprived

defendants of a fair trial. Before

focusing on the specific remarks

complained of we will first summarize

the legal principles applicable to

defendants’ contention.

9la

We recognize at the outset’ that

although the prosecutor operates within

the adversary system, his unique position

as a quasi-judicial officer representing

the Commonwealth dictates that he seek

justice, and not merely convictions.

Commonwealth vv. Gilman, 470 Pa. 179,

368 Ae 2d 253 (1977). Accordingly, in

arguing his case to the jury, the

Commonwealth's attorney must not [23

intentionally misstate the evidence or

mislead the jury concernig the inferences

it may draw, (2) express a personal

opinion regarding defendant's guilt or

the veracity of any testimony presented,

(3) appeal to the passions or prejudices

of the jury, or (4) make any comments

which would divert the jury from its

responsibility to decide the case solely

on the evidence adduced at trial.

Commonwealth v. Cherry, 474 Pa. 295,

378 A. 2d 800 (1977). However, not every

92a

intemperate or unnecessary remark by

the prosecutor entitles ; defendant to

a new trial. Rather, retrial is required

only where the “unavoidable effect [of

the language used] would be to prejudice

the jury, forming in their minds fixed

bias and hostility toward the defendant,

so that they could not weigh the evidence

and render a true verdict." Commonwealth

vw, Beestetae, £0602 ..F@. 43, Sir —aer Ba

2d 873, 882 (1975), quoting Commonwealth

ve. Simon, 432 Pa. 386, 394, 248 A. 2d

289, 292 (1968). Further, any remarks

alleged to be prejudicial must be judged

in the context in which they were

delivered. Commonwealth v. Smith, 490

Pa. 380, 416 Ae 2d 986 (1980), and

comments which might otherwise require

reversal may at times be justified as

a legitimate response to the arguments

of defense counsel. Commonwealth Vv.

Stoltzfus, supra. Finally, curative

93a

instructions by the court may on occasion

lessen the prejudicial effect of improper

remarks, thus avoiding the necessity

of a retrial. Commonwealth v. Henry,

295 Pa. Super. 47, 440 A. 2d 1215 (1982).

Keeping these principles in mind,

we will now consider some specific

comments made by the assistant district

attorney which have been cited by

defendants as examples of prosecutorial

misconduct. Defendant Steingraber argues

that the assistant district attorney,

in his opening statement, erroneously

advised the jury that "as [the pickup

truck] went out of [George Kontrabecki's]

sight it came into the sight of the

Pennsylvania State Police." (HeTa « 2363s

However, neither Steingraber nor his

co-defendants objected to this statement

at any time during trial, and this issue

is therefore waived, Commonwealth Ve

Long, 258 Pa. Super. 312, 392 A. 2d 810

94a

(1978). In any event, an examination

of the testimony of Agent George

Kontrabecki and Trooper Leon Huey,

together with the markings that - each

made on Exhibit 1 indicating the extent

of their surveillance of the truck,

reveals that tis statement was supported

by the Commonwealth's evidence, and the

jury could properly make a finding to

this effect.

Defendant Guinther contends that

prejudicial error occurred when the

assistant district attorney told the

jury in his opening address that "ten

miles east of Jacksonville, Florida,

Agent Kontrabecki and several other agents

from the Customs Department fell in behind

the airplane which they believed to be

the same one flown by Mr. Guinther, and

they followed that airplane and _ kept

it in sight all the way to the Washington/

Baltimore Airport.” [Rate 212). The

95a

assistant district attorney subsequently

offered to prove the facts contained

in the above-quoted excerpt, but’ the

trial judge sustained defendant Guinther's

objection to such testimony (N.T. 433-34).

Agent Kontrabecki was permitted to

testify, however, that he took off from

Jacksonville for the purpose of pursuing

a plane. Guinther then moved for a

mistrial (N.T. 439) on the ground that

the Commonwealth, as a result of the

court's ruling, would be unable to

demonstrate the visual surveillance

referred to in its opening speech. The

trial judge properly denied this mistrial

motion in view of the fact that the

assistant district attorney made the

statement believing in good faith that

he could prove it. Commonwealth vy,

Farquharson, 467 Pa. 50, 354 A. 2d 545

(1976); Commonwealth P. Johnson, 287

Pa. Super. 58, 429 A. 2d 718 (1981).

96a

As Agent Kontrabecki had already testified

to the visual surveillance at the

suppression hearing (S.T. 157; Finding

of Fact 16), the prosecutor clearly did

not invent the statement in an attempt

to mislead the jury. Rather, he merely

failed to anticipate the fact’ that,

because some of the testimony offered

at the suppression hearing to establish

probable cause was excludable hearsay

at trial, Kontrabecki's testimony

regarding visual surveillance of an

airplane between Jacksonville and

Baltimore, without certain other evidence

presented at the suppression hearing,

could not be connected to the aircraft

N6729T. Bad faith cannot be imputed

from this mistake, and in any event,

the assistant district attorney's

statement, when viewed in light of all

of the other evidence establishing

Guinther's guilt, is not so inherently

97a

prejudicial as to require a new trial.

Commonwealth v. Farquharson, supra.

Defendants also challenge the

propriety of numerous statements made

by the assistant district attorney in

his closing speech, and cite the following

four passages as being assertions by

the prosecutor of his personal opinion:

(1) "We have had a year and

a half to sit back like Monday night

quarterbacks and analyze each and

every thing that was done here,

and it sounds so simple now to look

back in retrospect and say, ‘Why

didn't the Customs people take a

vacuum cleaner and dust William

J. Steingraber to see if he had

marijuana debris?’ and ‘Why wasn't

the bumper of the pick-up- truck

dusted for fingerprints?’ and ‘Why

wasn't each and every tiny little

fiber in Exhibit No. 12 taken out

and analyzed along with head hairs

and everything else?'

It's very simple and very unfair

to look back on events that took

place in the middle of the night

in the cold when these men were

involved in the heat of an

investigation or criminal

investigation.” (N.T. 1067).

(2) "Ur. Gillman [the FAA

employee in the control tower at

Vero Beach} was not asked to identify

these bundles here in court. The

man was two hundred feet away from

this airplane. He only saw parts

of boxes. He did not go down.

He did not examine the boxes or

mark them in any way. It would

be impossible for Mr. Gillman or

for Andrew Bradley [the Vero Beach

police officer] to testify for sure

that these were the boxes ---" (N.T.

1070).

(3) “First of all, why would

George Kontrabecki come into this

courtroom and lie on the witness

stand in this case? That is not

only not nice, it's not only a lie,

it's a crime. It's the crime of

perjury to come into a courtroom

and take an oath to tell the truth

and lie."

"Now, George Kontrabecki

testified he has been a Customs

agent -- I forget exactly how many

years, but it's been a number of

years. He has been an agent for

quite a while. What possible motive

could George Kontrabecki have for

coming in here and lying in this

case, and even if you think he was

lying, don't you think he could

have told better lies’ here? If

he's really the smart professional

witness, the professional liar that

the defense wants you to believe

he is, why didn't he tell better

lies here, because all he had to

do was say a few other things and

that really would have covered some

of the gaps in this case."

"All Agent Kontrabecki had

99a

to say was, ‘As I was driving up

to this airplane parked on the

ground, I saw two men. I saw Mr.

Steingraber and Mr. Santarelli,

and they were getting out of the

airplane and each one threw a brown

bundle in the back of the truck

and they drove off and the license

plate number of the pickup’ truck

was CC-72706, and I saw that the

lights went on as it went out the

gate,’ If Agent Kontrabecki wanted

to lie --" (N.T. 1089-90).

(4) “At any rate, my oburden

here is to prove these defendants

guilty beyond a reasonable doubt,

and although there may be some doubt

here in this case for certain

different things, I suggest to you

that none of the doubts in this

case rise to a reasonable doubt.

None of the cross-examination has

raised anything that amounts to

a reasonable doubt. No matter what

anybody says about bridges or David

and Goliath, there is no reasonable

doubt in this case, and under all

of the evidence all three of these

defendants are guilty as_ charged

of possessing marijuana, and

possessing it with the intent to

deliver it and criminal conspiracy."

(N.T. 1103-04.)

None of the above-quoted statements

by the assistant district attorney can

reasonably be interpreted as expressions

of his personal opinion. Rather, each

100a

in effect requested the jury to come

to certain findings and conclusions based

upon the evidence presented, the

reasonable inferences therefrom, and

common sense, The first comment (1)

regarding "Monday night quarterbacks"

was clearly a response to defense

arguments implying that police and customs

officers did not adequately investigate

factors which might tend to exculpate

defendants.° Further, the trial judge

sustained a defense objection to_ the

word "unfair" and instructed the assistant

district attorney not to use that term.

(N.T. 1067-68).

In the second excerpt (2) quoted

above, the assistant district attorney

made a proper argument concerning an

inference which the jury could reasonably

draw from the testimony of Mr. Gillman

and Officer Bradley. The assistant

district attorney perhaps overstated

10la

his case a bit by his use of the word

"impossible," but the trial judge in

effect cautioned the jury on this point

(N.T. 1070), and in any event the failure

of Mr. Gillman and Officer Bradley to

identify the bundles of marijuana in

the courtroom was favorable rather than

unfavorabie to the defendants.

The assistant district attorney's

remarks in the third statement (3) quoted

above were: again intended to counter

a very strong attack by the defense on

Agent Kontrabecki's credibility.’ The

prosecutor never stated his personal

opinion that Agent Kontrabecki was telling

the truth, or “vouched" for Kontrabecki's

testimony, but rather asked the jury

to consider what motive Kontrabecki would

have to lie. Although we do not condone

the implication, if such in fact was

conveyed, that Kontrabecki's status as

a law enforcement officer somehow

102a

bolstered his credibility, defendants

were not prejudiced thereby in light

of the ample opportunity they were

afforded during voir dire to determine

the weight prospective jurors would give

police testimony vis-a-vis testimony

from other sources, and the instruction

by the court that "[a] witness should

not be more readily believed or

disbelieved or his testimony be given

more or less weight merely because he

holds a certain title or position than

that of another witness.” (N.T. 1127).

Further, in his statements regarding

Agent Kontrabecki the assistant district

attorney did not impermissibly argue

facts not in evidence, as defendants

contend. Rather, his comments concerning

the “better lies” Kontrabecki could have

told were clearly stated in hypothetical

terms, and there was no possibility that

the jury could have irterpreted them

103a

otherwise. In any event, after a defense

objection, the trial judge instructed

the jury to ignore what Kontrabecki could

have said and focus on what he and other

witnesses did say. (N.T. 1090).

The fourth statement (4) is

essentially an argument that the evidence

demonstrates defendants’ guilt, not an

expression of personal opinion. The

Commonwealth's attorney may always argue

that the evidence proves defendant guiity

as charged. Commonwealth v. Smith, supra;

Commonwealth v. Henry, supra. To find

prejudice to the defendants merely because

the prosecutor stated that “under all

of the evidence . . . defendants are

guilty as charged” (emphasis added),

as opposed to stating "al of the evidence

proves defendants guilty as charged”

would give undue weight to a ~=*minor

semantic distinction. The words the

assistant district attorney chose made

104a

it clear to the jury that they were being

asked to act on the basis of the evidence.

Further, the jury was repeatedly told,

by the court and counsel, that defendants

were innocent until proven guilty;

therefore, the use of the words “are

guilty” was not prejudicial. In addition,

the assistant district attorney did not

express his personal opinion regarding

the credibility of defendants’ character

witnesses by suggesting that their

testimony did not raise a _ reasonable

doubt. His comments, read as a whole,

are to be reasonably interpreted as an

argument that, even assuming the truth

of defendant's reputation testimony,

the remainder of the evidence nonetheless

demonstrated defendant's guilt beyond

a reasonable doubt.

In any event, the trial judge, at

the close of the prosecutor's speech,

gave the following cautionary instruction

105a

to the jury:

"One other comment I will make

with respect a Dautrich's

closing argument. The most he can

do is ask you to find guilt based

on the evidence rather than tell

you to find anyone guilty or rather

than he saying that they are guilty

or that in his opinion they are

guilty, so if he made any such

comments to you, you will ignore

them and you will arrive at your

verdicts solely on the basis of

the evidence and in accordance with

the instructions on the law." (N.T.

1104-05).

Therefore, even if some of the

prosecutor's comments could be interpreted

narrowly as an expression of personal

opinion, the above curative instruction

negated any possible prejudice.

Defendant Steingraber also contends

that the assistant discrict attorney,

in his closing address, vouched for the

credibility of Commonwealth witnesses.

For example, Steingraber challenges the

following statements:

"By virtue of his’ training

he [Agent Kontrabecki] is acute.

106a

He is tuned in to certain things

just like anybody who works in a

certain profession such as a doctor."

(N.T. 1085).

"At any rate, you should

rightfully consider when you are

judging the credibility of all these

witnesses that scme of these police

officers, some of them have been

police officers - Lieutenant Pijar

I think said thirty-two years.

Huey and Belsterling, all these

men have been police officers for

a long time. What motive do these

people have to come in here and

Lie, --GhaG0Rt. téstigeans .. «= «7

(N.T. 1090-91).

The first comment hardly amounts

to "“vouching"; rather, it is a proper

argument directed to the common’ sense

and everyday experience of the jurors.

The second comment merely requested the

jury to evaluate the credibility of

certain Commonwealth police witnesses

by inquiring as to what motive they would

have for lying or distorting testimony,

and even if there was any implication

that these witnesses were credible,

defendants were not prejudiced for reasons

107a

already discussed above with respect

to the second excerpt (2) of the assistant

district attorney's comments.

We have reviewed the other comments

claimed by defendants to have been

prejudicial and are satisfied that no

improprieties justifying retrial occurred.

In conclusion we point out that defense

counsel themselves engaged in spirited

argument and provoked a spirited response

by the Commonwealth. Further, counsel

for Santarelli and Steingraber proceeded,

without objection from the assistant

district attorney, to place their

arguments before the jury not only in

their closing speeches. but in their

opening speeches as well. Counsel for

Santarelli gave such an opening speech

even though no evidence was’ presented

by Santarelli. The only evidence

presented by Steingraber consisted of

character testimony but scant reference

108a

was made to this evidence in the opening

speech of counsel for Steingraber. I

light of the spirited trial that took

place, the content of the opening and

closing arguments of defense counsel

as well as the Commonwealth, the evidence

presented, and the instructions to the

jury from time to time, we are unable

to find any prejudice to defendants as

A result of the assistant district

attorney's opening and closing arguments.

V. Miscellaneous issues.

Finally, defendants raise a number

of issues which are more limited in scope

than those previously discussed and which

we group- together for the sake of

convenience. In this section we of course

consider only those contentions’ which

have been adequately briefed.

Defendants Steingraber and Guinther

contend that the court erred in

consolidating the cases for trial.

109a

However, 18 Pa. C. S. Ae §903(d)(i)

specifically provides for the joint trial

of co-conspirators, and defendant made

no motion for severance under 18 Pa.

C. S. Aw §903(d)(2)(iii). In any event,

a motion for consolidation is addressed

to the sound discretion of the Court

and will not be reversed absent an abuse

of that discretion. Commonwealth Vv.

Norman, 272 Pa. Super. 300, 415 A. 2d

898 (1979). Defendants cite no specific

instances of prejudice resulting from

consolidation, but instead Steingraber

asserts only the argument that the

evidence against Guinther was “irrelevant”

to that against himself and Santarelli.

Such a claim is baseless in view of the

fact that the totality of the evidence

substantiated particularly the conspiracy

charge as well as the charges of

possession and possession with intent

to deliver marijuana, involving a scheme

110a

of participation by all three defendants

in transactions constituting the offenses

charged. Pao. Re. Crim. P. 1127 A(2).

Further, consolidation was clearly

warranted on grounds of judicial economy

and did not prejudice defendants’ right

to a fair trial.

Defendant Guinther contends that

the trial court’ erred in admitting

evidence concerning his activities in

Florida after the Commonwealth, in answer

to defendant's request for a bill of

particulars specifying the dates, times,

and locations of the crimes’ charged,

responded that Guinther committed the

crimes of possession and possession with

intent to deliver on November 12, 1980

between 2:90 a.m. and 4:00 a.m. at or

near the Reading Airport in Berks County,

Pennsylvania, and the crime of conspiracy

at times and places unknown in Berks

County on and prior to November 12, 1980.

llla

eo ,

det OPK SO eS

At trial, counsel for defendant Guinther

objected to the opening statements of

the assistant district attorney concerning

events in Florida, pleading surprise

and requesting a mistrial, which was

denied by the court. (N.T. 208-09).

Guinther renewed his objection when the

Commonwealth offered its first Florida

witness, but was again overruled by the

court (N.T. 294-96). It is true that

"the function of a bill of particulars

is to enable the accused to prepare for

trial and to prevent surprise."

Commonwealth v., Simione, 447 Pa. 473,

291 Aw 2d 764, 766 (1972). However,

in light of the extensive testimony

presented at both the preliminary hearing

and the pretrial hearing concerning

defendant Guinther's activities in

Florida, his plea of “surprise” made

at trial is totally without merit. More

importantly, the testimony given by the

112a

Commonwealth's witnesses to events’ in

Florida did not contradict or go beyond

the bill of particulars, as was the case

in Commonwealth v. Simione, supra and

Commonwealth v. Bartman, 240 Pa. Super.

ono, oer “&s 26 2221 (1976), cited by

Guinther; rather, such testimony merely

constituted circumstantial evidence,

which, together with other evidence,

tended to show that Guinther in fact

committed the crimes charged within Berks

C.unty, as set forth in the bill of

particulars. The trial judge committed

no error when he admitted the testimony

and refused Guinther's motion for

mistrial.

Defendants Guinther and Steingraber

argue that the court improperly denied

defense counsel access to the assistant

district attorney's notes. The facts

relevant to this contention are as

follows: Attorney Bernhart, counsel

113a

a

for defendant Guinther, during his cross-

examination of Wendell Mihalak, requested

that "the Commonwealth produce any

previous statements of this witness

* « « Or any notes that Mr. Dautrich

{the assistant district attorney] may

have made in interviewing this witness."

Mr. Dautrich responded "that the defense

attorneys have been given copies of the

police report, and there is nothing else

unless he wants to see my notes," and

oe Bernhart's request Assistant

District Attorney Dautrich voluntarily

gave his trial notes to Mr. Bernhart

eS 242). During further cross-

examination, Attorney Bernhart asked

Mihalak on two occasions if he ever told

Mr. Dautrich that Guinther called in

his airplane as No. 75880 to which Mihalak

replied "No" (N.T. 246, 247). Following

the cross-~examination of Mihalak by

Attorney Bernhart on various other matters

ll4a

and after a recess, Mr. Bernhart again

asked for the notes which had _ been

returned to Assistant District Attorney

Dautrich, in order to again question

whether Guinther had given Mihalak the

call number 75880, and Mr. Dautrich

refused to relinquish the notes again.

At sidebar Mr. Dautrich explained that

his notes were his work product based

on conversations with everybody involved

and included different things he wanted

to check on, that the notes were not

inclusive, all encompassing notes of

statements, and that he didn't know where

the number 75880 came from (N.T. 261-

262). The court stated that if the notes

reflected verbatim or closely accurate

statements made by the witness, or if

they were identifiable as notes of a

conversation between a particular witness

and Mr. Dautrich, the statement must

be made available to defendants (N.T.

1l5a

260, 262). Mr. Bernhart did not ask

for a hearing in the absence of the jury

but agreed that the court could “rely

upon what Mr. Dautrich tells us" (N.T.

262-263). The court asked Mr. Dautrich

whether he could state where and from

whom he obtained the number 75880 to

which Mr. Dautrich replied "No". The

court then denied Mr. Bernhart's request

that the court order Mr. Dautrich to

turn over his notes (N.T. 263).

This ruling was proper in view of

the nature of the assistant district

attorney's trial notes. Since the notes

were not verbatim or substantial verbatim

factual accounts of interviews with

witnesses who subsequently testified

at trial, they did not fall within the

holding of Commonwealth Vv. Contakos,

492 Pa. 465, 424 A. 2d 1284 (1981)

requiring disclosure to the defense.

the assistant district attorney's initial

ll6a

accommodation by voluntarily furnishing

his notes to the defense for use during

cross-examination did not preclude his

later decision to withhold them when

defense counsel wanted to ask the witness

the same question for the third time,

as defendants had no right to see the

notes in the first place. Defendant

Steingraber's argument that the assistant

district attorney's actions denied him

access to “exculpatory” evidence, i.e.,

the number 75580, is without merit.

Even if Mihalak had mentioned this call

number as being used by Guinther, such

evidence would in no way “exculpate”

Steingraber. Any benefit to be gained

by defendants in terms of attempting

to impeach Mihalak's credibility had

already been realized through Attorney

Bernhart's cross-examination, and

Steingraber could not profit from further

exploration of this issue.

1i7a

In any event, defense counsel had

possession of and opportunity to inspect

and use Mr. Dautrich's notes for an

extended cross-examination of Mihalak

until the notes vere returned to the

assistant district attorney, during which

cross-examination Mihalak on two occasions

testified Guinther had not given Mihalak

the call number, and Mr. Dautrich stated

to defense counsel and the court that

he didn't know where or from whom he

obtained the number. Just what further

purpose the continued use of Mr.

Dautrich's notes would have served was

not stated by defendants, and if there

was any error in the court's ruling it

was harmless error beyond a reasonable

doubt.

Defendant Guinther contends that

the trial court erred in denying him

the opportunity to cross-examine

Lieutenant Stanley Pijar, a member of

118a

the Pennsylvania State Police having

the only key to Troop L's evidence locker,

regarding an alleged instance in which

the security of the evidence locker was

breached. Guinther's counsel represented

to the court at sidebar that as part

of a Berks County case entitled

Commonwealth v. Tasco and Weinman, the

state police in 1968 or 1969 conducted

a raid which resulted in the seizure

of certain coins and their subsequent

storage in the state police evidence

locker, and that when the case came to

trial in 1973 or 1974, an extra dime

was allegedly discovered among the

evidence. Attorney Bernhart offered

this evidence as being relevant to whether

or not the evidence locker "was in fact

a secured and sacrosanct area” (N.T.

824-25). Defendant's contention is

totally without merit and hardly merits

discussion. Evidence of a condition

119a

that may have occurred ten or more years

ago is not proof of a present day

condition and is therefore inadmissible

because of idaeumnase and irrelevancy.

Guinther next contends that the

trial court erred in admitting into

evidence a card bearing rolled, inked

impressions of his fingerprints (Exhibit

2), and in allowing testimony that the

fingerprints appearing on said card

matched those found in the aircraft

N6729T. The gist of defendant's argument

is that the chain of custody of Exhibit

2 was not properly established. The

record discloses that State Police

Corporal Stiver identified Exhibit 2

as the same fingerprint card on which

he on November 12, 1980 took rolled,

inked impressions of all ten of Guinther's

fingers appearing thereon and identified

his (Stiver's) signature placed thereon,

as well as Guinther’s signature placed

120a

thereon in Stiver's presence (N.T. 394-

395). State Police Corporal Petrosky

testified that on November 12, 1980 he

took latent fingerprints from the airplane

and the following day compared them with

the prints contained on the same Exhibit

2, which at the time was also initialed

by Petrosky (N.T. 753). Whether Stiver

placed Exhibit 2 in the Guinther file

at state police headquarters and then

handed it to Petrosky or placed it on

Petrosky's desk is of no consequence.

"(T]he Commonwealth need not show a

complete chain of custody - it is

sufficient to show evidence establishing

a reasonable inference that the identity

and condition of the evidence have

remained the same from the time it was

first received until the time of trial."

Commonwealth v., Oates, 269 Pa. Super.

iS7, 263, 409 @ 26 -122; 3380 €207G0s

We conclude that the Commonwealth's

12la

evidence concerning Exhibit 2 satisfied

this standard, and that this exhibit

and testimony relative thereto were

properly admitted into evidence.

Defendant Steingraber argues’ that

the court erred in allowing State Trooper

Haberstroh to testify that possession

of 343.6 pounds of marijuana is not

consistent with personal use. However,

Haberstroh was cleariy qualified to give

such an opinion in view of his fourteen

years- of experience with the Troop L

Vice unit and his special training in

narcotics. At sidebar the trial judge

sustained a defense objection to any

testimony that possession of the amount

in question is "more consistent with

an intent to sell," but allowed the

testimony that was in fact given.

Steingraber made no request to cross-

examine Haberstroh on his qualifications

before Haberstroh stated his’ opinion,

122a

but instead questioned the trooper on

qualifications thereafter (N.T. 866-79).

Defendant Guinther contends that

the court erred in. not instructing the

jury that they could find the defendant

guilty of possessing only a small amount

of marijuana, based upon testimony that

the amount removed from the aircraft

N6729T weighed less than thirty grams.

However, such a finding by the jury would

not have been sheik ah with the offenses

charged, the contentions of the parties,

and the totality of the evidence

presented, The issues involved were

whether or not Guinther participated

in a criminal conspiracy to commit and/or

committed the offenses of possession

and/or possession with intent to deliver

approximately 343 pounds of marijuana,

the basis on which the case was submitted

to the jury (N.T. 1120-1121). Therefore,

123a

Guinther's requested instruction was

properly refused.

Defendants raise various other

objections to the wording of the trial

judge's charge to the jury and his refusal

to include certain requested points for

charge. Most of the requested points

were included in modified form of language

by the trial judge, and other requested

points were properly refused. "26. ae

well established that a trial judge is

not required to accept a requested

instruction verbatin, even i f legally

correct and timely filed. The court

is free to select its own form of

expression, sO long as-_ the issue is

adequately, accurately and clearly

presented to the jury.” Commonwealth

v. Gardner, 246 Pa. Super. 582, 589-90,

371 A. 2d 986, 989-90 (1977). "(In

reviewing jury instructions for

prejudicial and reversible error, the

pf

charge must be read and considered as

a whole. Commonwealth v. Lesher, 473

PGs. S925 212 “Be 26 2068 (1977). Error

cannot be predicated on isolated excerpts

of the charge. It is the general effect

of the charge that controls."

Commonwealth Va Woodward, 483 res -

4, 394 A. 2d 508, 510 (1978). We conclude

that the charge was clear and

comprehensible, fair and proper, and

without error.

Finally, defendants Guinther and

Santarelli contend that the court

established unreasonable time limitations

for briefing and argument on post verdict

motions. The jury verdicts were returned

June 23, 1982 and defendants filed post

verdict motions twelve days later on

July 6, when the court ordered _ that

argument be scheduled for August 36

The record was transcribed promptly and

in order to accommodate defendants copies

125a

thereof were distributed to defendants

in advance of final numberi:z of pages

of some portions thereof and of formal

lodging with the Clerk of Courts.

Defendants filed voluminous briefs of

argument, and at their request argument

was deferred until August 6. However,

on August 6 all three defendants appeared

in court and informed the trial judge

that they wished to waive oral argument.

Under these circumstances defendants

can hardly be heard to complain that

they lacked adequate time to prepare

their briefs and present their arguments.

We conclude that defendants" contentions

are without merit.

We have reviewed the merits of ail

of the other contentions properly raised

by defendants, and are satisfied that

they raise no errors requiring a new

trial. For all of the above reasons,

therefore, we deny defendants’ motions

for new trial and/or arrest of judgment.

126a

FOOTNOTES:

lthe Controlled Substance, Drug, Device and

Cosmetic Act, Act of April 14, 1972, P.L. 233,

No. 64, §§13(a)(16) and 13(a)(30), 35 Pa.C.S.

A. §780-113(a)(16) and 780-113(a)(30).

“The Crimes Code, Act of December 6, 1972, P.L.

1482, No. 334, §903(a)(i), 18 Pa.C.S.A. §903

(a)(i).

In his post verdict motions Guinther raised

issues pertaining to both the sufficiency and

weight of the evidence, but in his brief failed

to discuss either. Accordingly, he must be deemed

to have abandoned these contentions.

"te their post verdict motions defendants

Steingraber and Santarelli also cite as error

the failure of the suppression judge to grant

a writ of habeas corpus based upon the alleged

insufficiency of the evidence presented at the

suppression hearings. We note that neither

defendant in his brief has actually analyzed

or cited any suppression testimony or treated

this issue as being in any way separate from

the sufficiency of the trial evidence. In any

event, the suppression testimony, as summarized

in our Findings of Fact and Conclusions of Law

of May 26, 1982, was substantially the same as,

and in fact more extensive than, that presented

at trial and already reviewed above. We therefore

conclude that defendants’ petitions for a writ

of habeas corpus were properly denied.

The nineteen prospective jurors excused for

having formed a fixed opinion of defendants’

guilt or innocence were Charles P. Schell, Alberta

L. Brooks, Richard F. Swavely, Wayne R. Rudolph,

Jantina C. Kelchner, Ronald J. Haas, Robert M.

Keith, Jr., Mary A. Ruff, Kathryn M,. Burkart,

127a

Kimberly A. Lulevitch, Kathleen A. Edwards, Sandra

E. Park, Ralph Keiser, Samuel F. Keiser, Lewis

F, Witwer, Charles J. Kehs, Velma A. Santoro,

Grace H. March and Pauline E. Burgess. The other

prospective jurors excused for cause were excused

not for having formed a fixed opinion but rather

for other unrelated reasons, such as_ business

commitments, a tendency to believe a police

officer over another witness merely because of

the former's status, an inability to accept the

legal principle that an accused need not present

any evidence in his own behalf, and so on.

6 ;

For example, Attorney Lieberman, counsel for

teingraber, made the following comments in his

closing address to the jury:

"This is the case of the Commonwealth with its

full power, the entire Pennsylvania State Police

force, the entire criminal laboratory and even,

it he needs it, the FBI laboratory. If they

wanted to use it, the FBI laboratory could have

been called in on this case. Whether it was

or wasn't I don't know."

"You know, Mr. Skrimcovsky said he had a

comparison microscope. He would compare these

fibers. He could compare hairs, and I'm going

to tell you that little strand of marijuana

allegedly in Exhibit 12, that bag, could have

been taken and matched with random samplings

from every one of those bundles under a microscope

and, if it's from the same crop, it would be

exactly the same. . . . The man said he had a

comparison microscope and could make comparisons,

the same way there was no objection to the fibers

being compared to the fibers in the bottom of

the plane and out of the rug of the plane, and

if the Commonwealth would have wanted to, they

could have stood Mr. Steingraber up and vacuumed

him to find out -- you know, if these bags were

torn the way they say or implied they were, do

you mean there would have been no marijuana debri

128a

on this man if they had loaded it? You have

to remember the plane only got there a_ short

while before, according to their testimony.

There was no activity between the plane and the

cargo truck. None. When I say ‘no activity",

no one moving back and forth, no unloading, but

I guarantee you the State Police if they wanted

to -- and no one can deny this -- could have

stood Mr. Steingraber on a sheet, brushed his

clothes off and looked for fibers, comparative

hairs or marijuana residue or debris, and I

guarantee you, if those packages were torn the

way they would like you to believe .. . there

would have been residue on Mr. Steingraber if

he's the one that loaded the truck or got near

one of those bales even though they can't even

put him at the plane, no fingerprints of his

on the exterior of the plane, none on the interior

or the plane, and there is no wa: you can get

it out without going in. Just look at that plane

in Exhibits 4 and 5." (N.T. 1046-48).

For example, Attorney Bernhart, counsel for

Guinther, made the following argument during

his closing speech:

"We then get to Officer Kontrabecki, and I have

already the major portion of his testimony and

showed you inconsistencies and contradictions.

Members of the jury, I don't want to suggest

to you that I have objections to a police officer

being zealous in the pursuit of his duties.

I have no objection and, in fact, am grateful

for hardworking police officers, but when an

individual attempts to be the prosecutor, the

witness, the judge and the jury in a criminal

case, my oath tells me I must object to that

because it is not the function of a police

officer, a prosecutor, to determine the guilt

or the innocence of an individual. That is a

function that you have and that cannot be usurped

129a

and cannot be taken from you, and I question

the credibility in all respects of Customs Agent

Kontrabecki."

"Does he give you the impression that he ias

come to this town to show the local yokels how

to handle things, how to testify, how to say

things and how to conduct a case? If he has

attempted to do that, he has failed, and I suggest

to you based upon his demeanor, his’ proven

inconsistencies, his proven discrepancies, his

attempt to say black is white or black is yellow

that you would not cross that bridge if he laid

those planks in that bridge and, if you would

not do that, you cannot expect Mr. Guinther to

do that. Was he less than candid? Did he attempt

to volunteer? Was he evasive? You consider

that and you judge his demeanor.” (N.T. 980-

81).

Scuinther's request No. 3 of his Request for

Bill of Particulars was for "The exact location

of the amounts of marijuana forming the basis

of the charges of Possession and Possession with

Intent to Deliver Marijuana." This was answered

in the Commonwealth's Bill of Particulars,

"Marijuana found in the airplane N6729T and in

the motor vehicle [pickup truck] Reg. CC 72706."

130a

IN THE COURT OF COMMON PLEAS OF

BERKS COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA

V.

WILLIAM M,. GUINTHER,

Defendant

Criminal No. 80181301

COMMONWEALTH OF PENNSYLVANIA

Ve

VINCENT SANTARELLI,

Defendant

Criminal No. 80181201

COMMONWEALTH OF PENNSYLVANIA

Ve

WILLIAM JOSEPH STEINGRABER,

Defendant

Criminal No. 80181601

ORDER

W. RICHARD ESHELMAN, J.

December 21, 1982, upon consideration

of defendants’ post verdict motions for

arrest of judgment and new trial, it

is ORDERED that defendant's motions are

denied. .

L3la

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Respondent

Vv.

VINCENT A. SANTARELLI

and

WILLIAM J. STEINGRABER,

Petitioners

No. 806 E.D. Alloc. Dkt. 1984

ORDER

PER CURIAM

March 4, 1985

Petition for Allowance of Appeal

Denied.

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANTA,

Respondent

Ve

VINCENT A. SANTARELLI

and

WILLIAM J. STEINGRABER,

Petitioners

No. 806 E.D. Alloc. Dkt. 1984

fon Petition for Reconsideration]

PER CURIAM

December 17, 1985

Petition Denied.

os

Ww

LA

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