Appeal from judgment of sentence of Court of Common Pleas of Lycoming County, Oct. T., 1973, No. 147, in case of Commonwealth of Pennsylvania v. Edward J. Jenkins.
Herbert G. Hardin, for appellant.
Allen E. Ertel, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.
[ 231 Pa. Super. Page 268]
Appellant contends that there was insufficient evidence to sustain his conviction under The Controlled Substance, Drug, Device and Cosmetic Act.*fn1
C. Patrick Murray, a narcotics agent, testified that, while standing on a street corner, he observed Ernest Welch, an informant who worked with the Williamsport Police and was accompanying Murray that day, conversing with someone in appellant's car. The informant left appellant's car and went to talk to Agent Murray. Agent Murray asked the informant to make a deal for fifteen bags of narcotics at ten dollars a bag. The informant returned to appellant's car and again engaged in conversation.
Later, Agent Murray and the informant went to Kelly's Bar on Fourth Street. The informant went over to talk to appellant, who was sitting at a table with a person identified as Mark Monastro. The informant returned to Agent Murray, who gave him
[ 231 Pa. Super. Page 269]
$120. The informant then entered the men's room, followed by Monastro. A few minutes later the informant returned to Agent Murray and handed him a packet which contained ten bags of hydromorphinol.*fn2
The Commonwealth contended at trial that appellant had given the bags to Monastro, who gave them to the informant, who handed them to Agent Murray. Agent Murray was the only one of the four parties to testify in court to the transfer of the bags. The informant was not called as a witness by either attorney, apparently because he could not be located at the time of the trial. Monastro and appellant testified that they had been in the bar, but denied that they had participated in the drug transaction.
Agent Murray did not testify that he saw appellant transfer the hydromorphinol to Monastro. Nor did he see Monastro deliver the drugs to the informant. He did not actually see the drugs until the informant handed them to him.
On returning to the police station, Agent Murray discovered that he had been shortchanged and had received only ten bags, rather than the twelve which he had expected for $120. Agent Murray left the police station and located appellant at the Twenty-One Bar. Agent Murray testified that he told appellant that he was two bags short of the twelve that he had paid for. Agent Murray further testified that the appellant replied, "I don't see how ...