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Commonwealth v. Smith3/23/2004
1 Appellant, Jameal Smith, appeals from his June 17, 2002 judgment of sentence. On appeal, he first argues that the trial court erred by not crediting his sentence with the time that he was incarcerated under a probation detainer lodged as a result of his criminal activity. He also argues that the verdict was against the weight of the evidence. We find that Smith has waived his weight of the evidence argument and remand for resentencing.
2 The trial court summarizes the facts of this case as follows:
n March 30, 2001, [Smith] was observed by Officer James Payne of the Pittsburgh Housing Authority Police standing with two other individuals in front of a residence in the Hill District section of the City of Pittsburgh. Officer Payne, when he first observed [Smith,] was in full uniform and driving a marked police vehicle. As he approached [Smith's] location, Officer Payne and [Smith] made eye contact. [Smith] then pulled a handgun and some other, unknown object from his right pocket and stuck them into the left breast pocket of the female individual he was standing with. Upon witnessing this, Officer Payne and his partner [, Officer David Clouse,] stopped the vehicle they were traveling in and approached [Smith] and the unknown female on foot. Ultimately, the female was placed into custody and the gun and a baggie of crack cocaine were retrieved from her left breast pocket. [Smith] was also placed into custody. As part of the search of [Smith's] person incident to arrest, one thousand one hundred forty six ($1,146) dollars [were] found in pocket. The cocaine seized from the female individual was submitted to the Allegheny County Crime Lab and found to weigh 10.757 grams. The firearm was also submitted to the Allegheny County Crime Lab and found to be operable.
Trial Court Opinion, 1/31/03, at 3 (citation to transcript omitted).
3 Smith was charged with carrying a firearm without a license possession of a controlled substance and possession of a controlled substance with intent to deliver. After a jury trial Smith was found guilty on all counts. The trial court sentenced him on June 17, 2002 to sixteen to thirty-six months of incarceration under the firearms charge and to a consecutive three to six year term of imprisonment on the possession of a controlled substance with intent to deliver charge. This appeal follows.
4 Smith's first argument on appeal is that the trial court did not properly credit him with his pretrial incarceration time when imposing his sentence. To understand this argument, it is necessary to take a closer look at the time between Smith's March 30, 2001 arrest and his March 22 through 26, 2002 trial.
5 As already noted, Smith was arrested March 30, 2001. He was released from jail when he posted bail two days later. Before trial Smith was arrested again, on April 16, 2001, on unrelated charges that he was in default of his child support payments. The next day Smith paid his child support arrears and so was entitled to release. But he was not released because Allegheny County Court of Common Pleas Judge Terrence O'Brien had issued a warrant for his arrest on April 9, 2001. Apparently, Judge O'Brien issued the April 9, 2001 warrant because Smith's March 30, 2001 alleged criminal activity violated a sentence of probation that had been entered against Smith on August 23, 1998 when Smith had entered a guilty plea to a firearms charge. Smith was held in jail under Judge O'Brien's detainer though his March 2002 trial on the charges arising from his March 30, 2001 arrest. According to Smith, Judge O'Brien ultimately closed interest in the detainer matter on August 16, 2002, without further penalty to Smit
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