Appeal from judgments of sentence of Court of Common Pleas of Delaware County, March T., 1973, Nos. 249 and 250, in case of Commonwealth of Pennsylvania v. Thomas Goodyear and Gary Goodyear.
Robert P. Anderman, and Anderman and Hughey, for appellants.
John G. Siegle and Ralph B. D'Iorio, Assistant District Attorneys, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J.
[ 235 Pa. Super. Page 545]
Appellants contend that because the Commonwealth's evidence was insufficient to convict them on the charge of possession of marijuana with intent to deliver,*fn1 their
[ 235 Pa. Super. Page 546]
convictions on the charges of conspiracy*fn2 and corrupting the morals of a minor*fn3 cannot be sustained.
On March 7, 1973, the Grand Jury of Delaware County returned three bills of indictment against appellants. The first charged appellants with a violation of The Controlled Substance, Drug, Device and Cosmetic Act. The second indictment charged appellants with the corruption of the morals of one William Hamill, but alleged no specific act of corruption. The third indictment charged appellants with conspiracy by virtue of their "(1) Knowing or intentional possession of controlled substances, possession with intent to deliver and distribution to persons under age 18; . . . (2) Corrupting morals of children."
The Commonwealth's evidence consisted entirely of the testimony of nine-year-old William Hamill. The child stated that on January 5, 1973, he went to the appellants' residence where appellant-Gary Goodyear offered him a "puff" of something resembling a cigarette. Appellant-Thomas Goodyear was present at this time. William Hamill testified that the object consisted of white paper wrapped around a green substance, that he asked Gary Goodyear what the substance was and that Gary told him it was "pot." He also stated that while he was at the Goodyear residence appellant-Thomas Goodyear sold a zip-lock bag of the same substance to a person named Rich.
The trial court found appellants guilty of all three charges. Appellants filed motions in arrest of judgment and for a new trial on April 10, 1973. The court en banc arrested judgment on the conviction for violation of The Controlled Substances Act because the Commonwealth failed to prove that the substance which appellant-Gary
[ 235 Pa. Super. Page 547]
Goodyear gave William Hamill was in fact marijuana and that appellant-Thomas Goodyear actually sold marijuana. The court en banc, however, refused to grant a new trial or arrest judgment on the ...