A three-judge state Superior Court panel has upheld the conviction and state prison sentence of a Berks County man who possessed four drugs with intent to sell them in August 2010 in Schuylkill County.
In a nine-page opinion filed Monday in Pottsville, the panel ruled Stephen S. Smith, 42, of Reading, did not show that the search of his Auburn residence was unlawful or that the substitution of a different expert witness at his trial was improper.
By so ruling, the panel affirmed Smith's Oct. 24, 2012, conviction on four counts each of possession with intent to deliver a controlled substance and possession of a controlled substance and one each of possession of a small amount of marijuana and possession of drug paraphernalia.
Judge Charles M. Miller, who presided over Smith's trial, sentenced him on Dec. 7, 2012, to serve eight to 16 years in a state correctional institution, pay costs, $40,000 in fines, $100 to the Substance Abuse Education Fund, $50 to the Criminal Justice Enhancement Account and $302 restitution to the state police crime laboratory in Bethlehem and submit a DNA sample to law enforcement authorities. Smith is imprisoned at State Correctional Institution/Rockview in Centre County.
State police at Reading charged Smith with possessing alprazolam, cocaine, dihydrocodeine, oxycodone and a digital scale on Aug. 1, 2010, in Auburn.
In the panel's opinion, Senior Judge Eugene B. Strassburger III wrote that the panel would not disturb Miller's conclusion that state parole agents did not search Smith's residence until after receiving their supervisor's approval for it and the defendant admitted using drugs while on parole. That use constitutes a parole violation and gave the agents reasonable suspicion needed to search the residence, Strassburger concluded.
"Because (Miller's) factual findings are supported by the testimony of the agents, and are based upon credibility determinations, we will not disturb those findings," Strassburger wrote.
He also wrote that substitution of one expert witness, Pottsville police Capt. (now Chief) Richard J. Wojciechowsky, for another, state police Trooper Troy S. Greenawald, on the issue of whether the drugs were for personal use or sale was permissible.
Smith had notice and time to prepare for Wojciechowsky's testimony, and it was the same as Greenawald's testimony would have been, Strassburger wrote.
"Without even the suggestion of any prejudice, we will not reverse the trial court's decision to allow the late substitution of expert witnesses by the Commonwealth," Strassburger wrote.
The other panel members, President Judge Emeritus John T. Bender and Judge Christine L. Donohue, concurred in Strassburger's opinion.
The state Supreme Court, in a one-sentence order also filed Monday in Pottsville, denied Smith's request to permit an appeal of the panel's ruling.