Appeal from judgments of sentence of Court of Common Pleas of Berks County, No. 1425 of 1970, in case of Commonwealth of Pennsylvania v. Lenwood Stephens.
George E. Goldstein, with him Robert M. Rosenblum, and Goldstein & Rosenblum, for appellant.
Grant E. Wesner, Deputy District Attorney, with him Robert L. VanHoove, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J.
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Appellant, Lenwood Stephens, was tried before a jury and convicted on March 23, 1971, of conspiracy*fn1 and illegal possession of marijuana.*fn2 On this appeal he contends that the evidence was insufficient to support these verdicts, and that the search warrant was improperly issued because there was no probable cause.
Appellant operated a store, the Perelandra, in Reading, Pennsylvania. The store consisted of three rooms, all on one floor. Most of the merchandise was displayed and sold in the front room. A back room contained additional merchandise but served mostly as a sitting room for patrons. There was a bathroom connected to the back room. Marcel Cafurello worked at the store on a part-time basis but received no salary. It appears that Cafurello and his girl friend had recently come from Arizona and had met appellant when they were hitchhiking and appellant gave them a lift. Appellant told Cafurello that while he was looking for work he and his girl friend could stay in appellant's apartment with appellant and his wife and child. Cafurello worked in appellant's store in return for this kindness.
On the afternoon of July 14, 1970, a plainclothes police cadet entered the front room of the Perelandra and proceeded directly to Cafurello, who was in front of the counter. The cadet asked Cafurello if he was "holding" any marijuana. Cafurello replied that he was, and that it was in the back room. The cadet asked Cafurello how much he wanted for it, and Cafurello said $40. The cadet had made two previous purchases from Cafurello, but appellant had not been present on either of those occasions. It appears from the affidavit in support of the search warrant that one of these purchases was in the
[ 231 Pa. Super. Page 485]
store, the other outside, in the cadet's car. This time, appellant was in the store and about two feet from Cafurello, on the other side of the counter. He did not react or respond to the conversation between the cadet and Cafurello.*fn3 The cadet left, ostensibly to get his money, while Cafurello headed toward the back room. A raiding party then entered pursuant to a search warrant and with an arrest warrant for Cafurello. One detective read the warrant to appellant, while another apprehended Cafurello in the bathroom, where he was fumbling with a Persian lamb coat in which two ounces of marijuana were found. At appellant's trial, Cafurello, who had pleaded guilty at his own trial, testified that the marijuana was his alone and that appellant did not know about it. Appellant also testified that he did not know about the marijuana.
This evidence must be regarded in the light most favorable to the Commonwealth, and the Commonwealth must be given the benefit of all reasonable inferences arising from it. Commonwealth v. Herman, 227 Pa. Superior Ct. 326, 323 A.2d 228 (1974); Commonwealth v. Minor, 227 Pa. Superior Ct. 343, 322 A.2d 717 (1974). So regarded, it nevertheless was insufficient to support either the conspiracy or possession conviction. Accordingly the issue of the propriety of the search warrant need not be decided.
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