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COMMONWEALTH v. FORTUNE (04/13/72)

decided: April 13, 1972.

COMMONWEALTH
v.
FORTUNE, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1970, No. 815, in case of Commonwealth of Pennsylvania v. Emma Fortune.

COUNSEL

Lenard H. Sigal, for appellant.

Milton M. Stein, Assistant District Attorney, with him James J. Wilson, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

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

Author: Per Curiam

[ 221 Pa. Super. Page 265]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Spaulding, J.:

I respectfully dissent.

Appellant Emma Fortune, having waived a jury trial, was convicted by Judge Herbert Cain, of the Court of Common Pleas of Philadelphia, of possession of narcotic drugs. She appeals from the judgment of sentence, contending that the evidence is insufficient to support conviction.

The only evidence presented by the Commonwealth was the testimony of one of the arresting officers, who stated that the police went to appellant's house*fn1 in Philadelphia with a warrant specifying appellant's person and residence as the subjects to be searched.*fn2 When they arrived, the police identified themselves and showed the warrant to an unidentified female who was seated in the front window of the dwelling. Upon seeing the police, this woman fled to the inside of the house without opening the door. The officers forcibly entered the house moments later.

The dwelling involved is a two-story private home. The first floor of the house consists of a living room, dining room, kitchen, and rear shed, in that order from ...


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