# Appendix — Steingraber v. Pennsylvania

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1986
- **Citation:** 476 U.S. 1116

## Text

» || 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

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an S * > a) =yall a _ ._< = ?
: a nie 7 0 ira = = iJ y = ee ‘ ’ ‘ ~ ‘ 7 ae Fs
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1627%3A2. Public record. Not legal advice.