Appeal from order of Superior Court, Oct. T., 1970, No. 1196, affirming 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.
Arthur K. Dils, for appellant.
George T. Brubaker, Assistant District Attorney, and Clarence C. Newcomer, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Roberts. Former Mr. Chief Justice Bell and former Mr. Justice Barbieri took no part in the decision of this case. Dissenting Opinion by Mr. Chief Justice Jones.
Appellant Frank P. Simione was convicted, after trial by jury in the Lancaster County Common Pleas Court, for violation of Section 4(q) of The Drug, Device
and Cosmetic Act.*fn1 He was sentenced to two to five years imprisonment. The Superior Court affirmed the judgment of sentence by a per curiam order, with Judges Hoffman and Cercone joining Judge Spaulding's dissenting opinion. Commonwealth v. Simione, 218 Pa. Superior Ct. 80, 274 A.2d 541 (1970). Subsequently this Court granted allocatur. We agree with appellant that the Commonwealth's evidence was insufficient as a matter of law to establish that he "sold" a narcotic drug. Accordingly we reverse the judgment of sentence.*fn2
The facts of this case are well-summarized in the dissenting opinion in the Superior Court. "At the 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 agent of the Pennsylvania State Police."*fn3
The indictment returned by the grand jury accused appellant in language nearly identical to that of Section 4(q) of The Drug, Device and Cosmetic Act.*fn4 The indictment alleged that appellant "did possess, control, deal in, dispense, sell, deliver, distribute or traffic in a narcotic drug: to wit: Hashish."
However, appellant moved for and obtained a bill of particulars.*fn5 This bill, as is conceded by the Commonwealth, specifically set forth that appellant "was charged with the sale of hashish. The case was presented and argued to the jury on the basis that Simione was either guilty of a sale or nothing, and the Court's charge left no room for doubt concerning the nature of the offense charged."*fn6
The Commonwealth's description of the bill of particulars and the judge's charge is thoroughly substantiated by the record in this case. The bill of particulars, after setting forth that defendant was charged with a violation of Section 4(q) of The Drug, Device and Cosmetic Act, and quoting the words of that section, went on to specify: "The facts upon which this prosecution are [sic] based are that Frank Peter Simione sold one gram of hashish, a compound or derivative of marihuana, a narcotic drug, to Paul L. Guy. The offense occurred on November 25, 1968 at 324 Front Street, Marietta, Lancaster County, Pennsylvania. The parties involved in the crime were Frank ...