Commonwealth v. DiSantis , 228 Pa. Super. 61 ( 1974 )

Opinion by

Watkins, P. J.,

This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Lancaster County after conviction of violation of The Controlled Substance, Drug, Device and Cosmetic Act, 1972, April 14, P. L. 233, No. 64, §1, eff. imd. et seq., based upon a complaint concerning the imposition of a sentence of $200, the costs of prosecution and imprisonment for a term of six to twelve months. This sentence is a proper one under the Act unless the amount of marijuana involved is 30 grams or less.

This appeal was before us at Commonwealth v. DiSantis, 416 Oct. Term, 1970, 222 Pa. Superior Ct. 387, 294 A. 2d 798 (1972), and in a unanimous opinion written for this Court by Judge Packel, was affirmed and the case remanded for modification of the sentence pursuant to the new Drug, Device and Cosmetic Act, supra. The original sentence imposed on this judgment was six to twenty-three months.

The appellant complains that the testimony of the police officer at the time of sentencing was that he didn’t weigh it but that in his opinion it was more than 30 grams. However, as the trial was held three years before, the court and counsel overlooked specific testimony at the trial by the chemist that he had weighed the marijuana and that it weighed 128 grams. In Judge Packel’s opinion, he put the weight from the record to be 4% ounces. There is clear evidence that the amount exceeded 30 grams so that the sentence is proper under the Act.

The other complaint raised by the appellant was the refusal by the court to hear further character testimony. Character testimony had been presented at the trial and at the first sentencing the trial court had full knowledge of the evidence of good character and reputation and was very familiar at the time of resentenc-ing with the appellant’s business success in the community. The calling of character witnesses some of which had already been heard would be clearly repetitious and well within the discretion of the court under the circumstances of this case.

Judgment of sentence affirmed.