Appeal, No. 204, Oct. T., 1958, from judgment of Court of Quarter Sessions of Philadelphia, May T., 1956, No. 298, in case of Commonwealth v. Melvin Carter. Judgment affirmed.
Herbert L. Maris, with him Lawrence Goldberg, for appellant.
Juanita Kidd Stout, Assistant District Attorney, with her James N. Lafferty, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 187 Pa. Super. Page 161]
The defendant on October 9, 1956 was convicted by a jury on an indictment charging possession and sale of a narcotic drug in violation of the Act of July 11, 1917, P.L. 758, as amended, 35 PS § 851, et seq. Motions in arrest of judgment and for a new trial were promptly filed but on July 3, 1957 both applications were "withdrawn at Bar" - VINCENT A. CARROLL presiding, who was the judge before whom the defendant had been tried and convicted. Thereupon the court immediately, following the withdrawal of the motions, announced that he would defer sentence and the record in this case, under date of July 3, 1957, contains this notation, "Sentence deferred". By this order the court reserved the power to sentence the defendant at a future date, and certainly under the rule of Commonwealth ex rel. Holly v. Ashe, 368 Pa. 211, 82 A.2d 244, the power persisted until it becomes functus by the sentence of the defendant, although more than six months later, on January 24, 1958. There is nothing in this record which even remotely supports the bald assertion of defendant's counsel in the motion for a new trial that Judge CARROLL had said that he would discharge
[ 187 Pa. Super. Page 162]
the defendant if the motion for a new trial was withdrawn. Counsel's statement to the above effect is in line with his conduct throughout the trial which cumulatively evidences a low conception of the degree of "good fidelity to the court" which counsel is bound to observe. Even if counsel's position were correct, his remedy was not by way of appeal but rather by an application to reinstate the motion for a new trial. Under the circumstances however we consider it appropriate to discuss the questions raised by appellant if only to demonstrate that this was a valid sentence and that the penalty imposed was proper, in the light of defendant's past criminal record which includes at least two violations of the above anti-narcotics Act.
The conviction rests principally upon the testimony of officer Wilbur Davis of the Philadelphia Police Department who testified that in plain clothes, and assuming the role of a drug addict, he was doing undercover work, primarily for the Federal Bureau of Narcotics; that in the afternoon of July 15, 1955, he had with him in his automobile one Andrew McCoy and two other "narcotic suspects"; they all were trying "to contact a peddler", to buy drugs; they saw the defendant standing on the corner of Fortieth Street and Lancaster Avenue in Philadelphia; one of them called the defendant to the car and asked him "did he know where the 'cop' man was - that is the narcotic peddler?"; that to this Melvin Carter said: "I am the cop man. I have some of my own" but he also said: "Let's go away from here. The police are around here." Davis testified further that the defendant then got into the automobile and at the suggestion of one of the others, they all went to a house at 635 North Markoe Street, the home of a brother of Andrew McCoy; according to Davis he and Melvin Carter went into a rear room in the house while the others remained "immediately behind
[ 187 Pa. Super. Page 163]
[him] in the hallway"; that there, for $10 paid him by Davis the defendant sold him 2 "bags". The white powder in these two small packets was identified by the testimony of a chemist as heroin, a derivative of opium, the sale of which constituted a violation of the Act.
The defendant had been tried and acquitted in a Federal Court of a violation of the Jones-Miller Act, 42 Stat. 596, 21 USCA § 174. The alleged violation arose from the same circumstances upon which defendant was convicted in the instant case. But the two statutes are not identical, and where the same criminal act gives rise to an offense against two sovereigns, each may punish. United States v. Lanza (1922), 260 US 377, 43 S.Ct. 141. Where there is an ...