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COMMONWEALTH v. PORTALATIN (11/16/72)

decided: November 16, 1972.

COMMONWEALTH
v.
PORTALATIN, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1970, No. 412, in case of Commonwealth of Pennsylvania v. Virgilio Portalatin.

COUNSEL

Mary Bell Hammerman, for appellant.

Richard D. Steel and Milton M. Stein, Assistant District Attorneys, 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, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Jacobs, J. Concurring and Dissenting Opinion by Hoffman, J. Spaulding and Packel, JJ., join in this concurring and dissenting opinion.

Author: Jacobs

[ 223 Pa. Super. Page 34]

This case presents the issue of whether the reduced penalty for simple possession of heroin under the recently

[ 223 Pa. Super. Page 35]

    enacted The Controlled Substance, Drug, Device and Cosmetic Act of 1972*fn1 is applicable to an offense committed prior to the effective date of the act, if nunc pro tunc motions in arrest of judgment and for a new trial were pending in the case after the effective date of the act. We hold that the penalty under the new act is applicable.

Defendant, on the evening of September 16, 1970, was observed by a police officer on a Philadelphia street in conversation with a juvenile male. The parties, who were standing close together with their hands held at the height of their waists, looked in the officer's direction. The officer glanced away; upon looking back, he saw a white object, later discovered to contain heroin, fall between the two individuals. As the officer approached, the subjects started to depart hurriedly. Upon this evidence, defendant was tried under The Drug, Device and Cosmetic Act of 1961*fn2 for possession of narcotics,*fn3 convicted in a non-jury proceeding, and sentenced on December 3, 1970, to 1 1/2 to 3 years imprisonment.*fn4 No post-trial motions were made.

In response to defendant's Post Conviction Hearing Act*fn5 petition, Judge Ethan Allen Doty of the court below found on March 28, 1972, that defendant had not been properly apprised of his attorney's appellate intentions and, on the authority of Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968), granted him the right to file motions in arrest of judgment and for a new trial, nunc pro tunc. While these motions were pending, The Controlled Substance, Drug, Device and

[ 223 Pa. Super. Page 36]

Cosmetic Act of 1972 went into effect.*fn6 Subsequently, the motions were denied on their merits. From that denial, defendant has perfected a timely appeal to this Court under Pennsylvania Rule of Criminal Procedure 325.

We agree with the lower court's denial of the motions in arrest of judgment and for a new trial; neither insufficiency of the evidence nor inadequate representation at trial has been demonstrated. When used to test the sufficiency of the evidence, these motions must be predicated upon the assumption that the Commonwealth's evidence was correct; the prosecution is entitled to all reasonable inferences therefrom. Commonwealth v. Jackson, 187 Pa. Superior Ct. 2, 144 A.2d 249, adopting opinion in 13 Pa. D. & C.2d 218 (1958). In light of the close proximity of the defendant and his companion, the positioning of their hands immediately prior to the dropping of the heroin, and their ...


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