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COMMONWEALTH v. MOLINA (10/28/75)

decided: October 28, 1975.

COMMONWEALTH
v.
MOLINA, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1973, No. 353, in case of Commonwealth of Pennsylvania v. Adalberta Molina.

COUNSEL

Lewis Maltby, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Mark Sendrow, Assistant District Attorney, with him Larry D. Feldman and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant 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 Watkins, P. J. Dissenting Opinion by Spaeth, J. Hoffman and Cercone, JJ., join in this opinion.

Author: Watkins

[ 236 Pa. Super. Page 599]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, by the defendant-appellant, Adalberta Molina.

The Commonwealth presented testimony from Officer Martinez, a Philadelphia police officer, that on May 23, 1973 at about 1:15 p.m. while having a candy store under surveillance, he observed the defendant at the doorway of the store pass a glazed packet to another person. The man who received the packet was apprehended two blocks away by Officer Martinez who recovered the glazed packet. The defendant was immediately arrested.

The packet seized was found to contain 7.2 grams of a mixture of heroin and reducing sugar which fit the category of heroin as a controlled substance. The defendant was tried before Judge Smith without a jury. The

[ 236 Pa. Super. Page 600]

    defense presented testimony of Henry Szelangowski, who was the man the officer saw make the purchase. He testified that the defendant did not give him the packet. The Commonwealth called the officer in rebuttal who testified that Szelangowski described the defendant to him accurately at the time.

The defendant contends that the rebuttal evidence was used by the court below as substantial evidence to convict. The court below in its opinion held that the rebuttal testimony was only used to impeach the witness's credibility and said:

"As to the above mentioned crime, 'the test to be applied in determining the sufficiency of the evidence, is whether accepting as true all of the evidence, be it direct or circumstantial or both, and all reasonable inferences arising therefrom, upon which if believed, the jury could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the ...


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