Appeal from order of Court of Common Pleas of Washington County, May T., 1971, No. 114, in case of Commonwealth of Pennsylvania v. Joseph Dillard.
Jack H. France, Assistant District Attorney, with him Jess D. Costa, for Commonwealth, appellant.
Sanford S. Finder, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Jacobs, J.
[ 221 Pa. Super. Page 311]
The Commonwealth appeals from an order of the lower court discharging the defendant on a pretrial motion. We reverse.
Appellee was driving an automobile owned by Merigo who was riding as a passenger in the front seat. Brown was riding in the back seat. A state police corporal signaled the automobile to stop. Before the automobile stopped he saw two items thrown from the automobile by Merigo. He recovered the second item which was a plastic bag containing marihuana. Appellee and his two passengers were charged with possession of a narcotic drug. Merigo and appellee were each indicted on July 15, 1971.
On August 4, 1971, appellee's counsel filed a petition to discharge appellee on the basis that there was
[ 221 Pa. Super. Page 312]
not sufficient evidence to hold him for trial.*fn1 The court fixed a time for a hearing on the petition which was postponed until December 29, 1971. Meanwhile Merigo was tried and found guilty of possession by a jury on November 15, 1971. Judge Alexander R. Curran tried Merigo and also made the order discharging appellee.
At Merigo's trial the state police corporal testified as to where the men were seated in the automobile and that Merigo was the one who discarded the marihuana. After he directed the car to pull over, he observed the two people in the front seat "shuffling back and forth and the one looked like he was reaching under the seat." He said Merigo could move around better than appellee, "[b]ut it looked like Mr. Dillard also was hunching over more than an ordinary driver would try to do." At his trial Merigo testified that he did not use marihuana and did not know there was any in the car until the policeman directed them to pull over. At that point he said the appellee handed it to him saying that he should place it under his seat. He said he refused and told appellee to throw it out, but appellee in turn refused, so Merigo threw it out himself. He explained the shuffling around in the car as his efforts to find his temporary owner's card in the glove compartment.
It was the Commonwealth's position that appellee had joint possession of the bag of marihuana. To prove this the Commonwealth proposed to call Merigo in appellee's trial. After argument of counsel on December ...