Appeal from judgment of sentence of Court of Common Pleas of Erie County, No. 1968 of 1968, in case of Commonwealth of Pennsylvania v. James Joseph Yaple.
R. Huhta, with him James D. McDonald, Jr., and Quinn, Plate, Gent, Buseck & Leemhuis, for appellant.
Frank L. Kroto, Jr., Assistant District Attorney, with him William E. Pfadt, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J.
[ 217 Pa. Super. Page 233]
The defendant, James Joseph Yaple, was found guilty by a jury of violating "The Drug, Device and
[ 217 Pa. Super. Page 234]
Cosmetic Act" of September 26, 1961, P. L. 1664, 35 P.S. 780-1 et seq., more particularly section 4(q) thereof (35 P.S. 780-4(q)), which makes it unlawful to possess any dangerous or narcotic drug.
The defendant made motions in arrest of judgment and for new trial which were refused by the court en banc. The defendant now appeals.
On September 9, 1968, at or about 10:15 P.M., Erie Police Captain Bagnoni, with two of his men, Sergeant Schwartz and Officer Sokolowski, while cruising in a patrol car, observed defendant Yaple and two others (Donald Seifert and Thomas Strick) standing on the lawn of a residence located at 1314 West Grandview Boulevard, Erie, Pennsylvania. The officers testified that as they pulled up they saw the defendant turn his back on them and with his right arm throw an object into a wooded area nearby. The officers found three small plastic bags on the ground at approximately the place where defendant was standing when first seen by the officers. Two of those bags contained approximately 88 white tablets, and the third bag contained approximately 15 green and yellow capsules. When the search into the wooded area in the darkness failed to reveal the object thrown by defendant, the area was revisited the next morning, and after a brief search, Officer Loco of the Erie Police Department found approximately 68 green tablets contained in a cellophane cover from a cigarette package. All the bags were forwarded to the Federal Bureau of Investigation Laboratory in Washington, D.C., for identification. At trial, Elwood Yates, Jr., a special agent with the Federal Bureau of Investigation, testified that some of the pills and tablets contained amphetamine and the remainder contained phenobarbital. He identified the pills as coming within the definition of the term "dangerous drug" contained in the Act under which defendant was indicted,
[ 217 Pa. Super. Page 235]
that definition expressly including amphetamines and drugs containing any quantity of barbituric acid (which phenobarbital does contain).
Yaple took the stand in his own defense. He admitted throwing the cellophane packet into the wooded area. He explained that when he and his friends were walking across the lawn he heard something hit the ground and he went over and picked it up just as the police pulled up. He said that when he saw Captain Bagnoni, he threw the object away. Yaple said he thought one of his friends had dropped the object, didn't know what is was, and that he threw it away to avoid trouble with Captain Bagnoni. Apparently there had been some confrontation between Captain Bagnoni and the defendant before that night. Yaple denied any knowledge of the three bags of pills found on the ground where he had been standing.
Yaple called Seifert and Strick as defense witnesses. Seifert testified he did not see the bag Yaple threw until Yaple bent to pick it up and that he did not see any of the other bags on the ground. Yet, he refused to answer whether any of the bags were ...