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decided: April 23, 1974.


Appeal from order of Superior Court, Oct. T., 1971, No. 1551, affirming 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.


Carolyn E. Temin, with her Susan L. Anderson, for appellant.

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

Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Opinion by Mr. Justice Manderino. Mr. Chief Justice Jones and Mr. Justice Nix took no part in the consideration or decision of this case. Mr. Justice Pomeroy dissents.

Author: Manderino

[ 456 Pa. Page 366]

Appellant, Emma Fortune, on June 16, 1971, in a non-jury trial, was convicted of the illegal possession of narcotic drugs. Act of September 26, 1961, P. L. 1664, § 4(q), 35 P.S. § 780-4(q). Post-verdict motions were denied and the appellant was sentenced to a term of not more than five years imprisonment. The Superior Court affirmed the judgment of sentence per curiam with a dissenting opinion by Judge Spaulding, in which Judge Montgomery and Judge Hoffman joined. Commonwealth v. Fortune, 221 Pa. Superior Ct. 264, 289 A.2d 729 (1972). This appeal followed.

[ 456 Pa. Page 367]

Appellant's sole contention is that the evidence presented by the prosecution was insufficient to establish beyond a reasonable doubt that the appellant was illegally in possession of narcotic drugs. We agree and reverse the judgment of sentence.

In determining whether the evidence is sufficient in law to prove that a defendant is guilty beyond a reasonable doubt of the crime or crimes charged, we must, after a verdict of guilty, accept as true all of the evidence, direct or circumstantial, and all reasonable inferences arising from the evidence, upon which the trier of facts could properly have based the verdict. Commonwealth v. Malone, 444 Pa. 397, 281 A.2d 866 (1971); Commonwealth v. Petrisko, 442 Pa. 575, 275 A.2d 46 (1971). Considered in that light, the evidence, and the reasonable inferences arising from the evidence, do not establish that the appellant was guilty of the illegal possession of narcotic drugs beyond a reasonable doubt.

The only evidence against the appellant was the testimony of the arresting officer, the only witness at the trial. His testimony established the following facts. On the afternoon of June 15, 1970, the arresting officer and several other officers, pursuant to a search warrant, went to 2350 North Carlisle Street, a two-story private home. The first floor of the home consisted of three rooms, a living room, a kitchen and a rear shed, each next to the other in a straight line going away from and perpendicular to the street. The living room had a large window on the street side of the room. The front door of the home was near the front window and opened into the living room. The stairs to the second floor were to the right of the front door as one enters the residence. The rear portion of the living room was used as a dining area.

When the police arrived, they saw a woman (not the appellant) seated at the large living room window. The window was open and the police, from outside the residence,

[ 456 Pa. Page 368]

    identified themselves and showed the search warrant to the woman at the window. The woman immediately ran away from the window, and the police proceeded, within seconds, to break down the front door. The prosecution witness was the first policeman to enter the residence. He ran directly from the front door, through the front room (living room and dining area), into the kitchen even though he testified that he did not see in what direction the woman fled. He found twenty-one packets of heroin on the floor in the doorway between the kitchen and rear shed. No one was in the rear shed or in the kitchen. Three men, and the woman seen earlier seated at the open window, were in the living room area of the front room. After the police entry, the appellant, who was wearing a robe, came downstairs, went through the living room and entered the kitchen where the arresting officer was picking up the packets from the floor. The appellant said "Don't lock me up." ...

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