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COMMONWEALTH v. MILLER (09/22/75)

decided: September 22, 1975.

COMMONWEALTH
v.
MILLER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1974, Nos. 1301 and 1302, in case of Commonwealth of Pennsylvania v. Gerald C. Miller.

COUNSEL

Douglas Riblet, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Marianne E. Cox, Assistant District Attorney, with her Mark Sendrow and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Dissenting Opinion by Jacobs, J. Van der Voort, J., joins in this dissenting opinion.

Author: Price

[ 236 Pa. Super. Page 254]

On October 28, 1974, the appellant, Gerald C. Miller, was found guilty of conspiracy and of knowingly possessing

[ 236 Pa. Super. Page 255]

    a controlled substance with the intent to deliver,*fn1 by the trial judge sitting without a jury. The sole issue presented on this appeal is whether appellant was denied his right to summation prior to verdict. We hold that he was denied this right and will reverse the judgment of sentence.

The Commonwealth's case consisted of one witness, undercover agent Gary Davis, who testified that on March 5, 1974, he purchased three (3) glassine bags containing a substance, later identified as heroin, from one Richard Mayo. Agent Davis met Mayo on the corner of 16th Street and Columbia Avenue, in Philadelphia, and told Mayo of his desire to purchase heroin. Agent Davis testified that Mayo walked over to where appellant was standing and a conversation between them ensued. The conversation culminated in appellant's delivery of the three glassine bags to Mayo, followed by Mayo's delivery of the bags to Agent Davis. Shortly after the completion of the transaction between Davis and Mayo, both Mayo and appellant were arrested.

Appellant's case consisted of, first, his own testimony, and then that of Mayo,*fn2 who had known appellant for about 10 years. Both men testified that appellant had been standing on the corner, but that he had had nothing to do with the sale, that he had not delivered the heroin to Mayo, and that Mayo had taken the bags out of his own pocket. This testimony makes it clear that the main, if not sole question was one of credibility.

At the conclusion of Mayo's testimony, the following colloquy took place:

"MR. STANSHINE: The Defense has no ...


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