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COMMONWEALTH v. SIMIONE (11/18/70)

decided: November 18, 1970.

COMMONWEALTH
v.
SIMIONE, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, Dec. T., 1968, No. 305, in case of Commonwealth of Pennsylvania v. Frank Peter Simione.

COUNSEL

S. R. Zimmerman, III, with him Geisenberger, Zimmerman, Pfannebecker & Gibbel, for appellant.

George T. Brubaker, Assistant District Attorney, with him Clarence C. Newcomer, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Spaulding, J. Hoffman and Cercone, JJ., join in this dissenting opinion.

Author: Per Curiam

[ 218 Pa. Super. Page 81]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Spaulding, J.:

I respectfully dissent.

Appellant, Frank Simione, appeals from denial of his motions in arrest of judgment and for a new trial. On May 29, 1970, in the Court of Common Pleas of Lancaster County, he was convicted by a jury of selling one gram of hashish in violation of The Pennsylvania Drug, Device and Cosmetic Act, Act of 1961, P. L. 1664, 35 P.S. 780-20. He was sentenced to a term of two to five years imprisonment. This appeal followed.

At trial the Commonwealth presented evidence to the effect that one Paul Guy had persuaded appellant to arrange the sale of a quantity of hashish through a third party, James Heisey. Guy testified that the alleged transaction took place in the kitchen of his apartment and that he, appellant, and Heisey were all present. Guy stated that he gave a twenty dollar bill to the appellant who then handed the money to Heisey. Heisey accepted the money and gave the gram of hashish and five dollars in change to appellant who in turn gave the hashish and change to Guy. Guy readily admitted that he had sought out appellant for the sole purpose of making such a purchase and that he was in fact employed as an undercover narcotics agent of the Pennsylvania State Police. The defense witnesses, all friends and acquaintances of these above parties, stated that neither appellant nor Guy or Heisey were in the apartment on that date and that ...


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