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Commonwealth v. Bess

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� 1 This is an appeal from a judgment of sentence and the denial of a petition filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. �� 9541-9546. *fn1 Appellant was convicted of possession with the intent to deliver a controlled substance (cocaine) *fn2 and possession of a controlled substance (cocaine) *fn3 for which the mandatory minimum sentence was imposed pursuant to 18 Pa.C.S.A. � 7508. On appeal, Appellant argues (1) the sentencing court erred in imposing the mandatory minimum sentence since the evidence did not establish that Appellant possessed a sufficient quantity of cocaine to invoke Section 7508, (2) trial counsel was ineffective in failing to file a motion seeking to suppress a statement Appellant made to the police, and (3) trial counsel was ineffective in failing to request a finding as to whether the jury determined how much of the cocaine was for Appellant’s own use and how much was for delivery. We affirm.

� 2 The relevant facts and procedural history are as follows: Appellant was charged with delivery of cocaine on March 11, 1999, after selling crack cocaine to a Pennsylvania State Trooper who was working undercover in York, Pennsylvania. The police arrested Appellant the next week, transported Appellant to police headquarters for questioning but failed to give Appellant Miranda *fn4 warnings. Appellant was searched, one hundred fifty-eight dollars ($158), was found on his person, and 2.2 grams of cocaine were recovered from his buttocks during a strip search. When the cocaine was discovered, Appellant spontaneously exclaimed that the drugs did not belong to him. Appellant was charged with possession of cocaine and possession with intent to deliver cocaine, the charges for which he was eventually convicted.

Appellant’s statement denying ownership of the drugs was included in the police report.

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