Appeal from judgment of sentence of Court of Common Pleas of Luzerne County, No. 374 of 1973, in case of Commonwealth of Pennsylvania v. Donald Flowers.
James F. Geddes, Jr., for appellant.
John J. Gill, with him Jerome L. Cohen, First Assistant District Attorney, and Patrick J. Toole, Jr., 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. Cercone, J., joins in this opinion.
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This is an appeal by the defendant-appellant, Donald Flowers, from the judgment of sentence of the Court of Common Pleas of Luzerne County, Criminal Division, after conviction of being an accessory before the fact concerning the sale of marijuana to a narcotics undercover agent after trial by a Judge sitting without a jury. The defendant was sentenced to a term of imprisonment of 6 to 24 months.
On October 6, 1972 two agents of the Pennsylvania Department of Health, Bureau of Drug Control, were conducting undercover narcotics operations in the City of Wilkes-Barre, Pennsylvania. One of the agents, Norman Lepere, approached the defendant and asked if the defendant was "holding anything" which in drug parlance means whether he had any drugs in his possession. The defendant responded negatively. A few minutes after the agent's initial solicitation, a third party, George Shiner, approached the defendant and a female acquaintance of his and asked whether either of them wished to purchase drugs. The agents were standing a short distance from the defendant at this time on a busy street in the center of the city and did not overhear any part of the conversation. After the conversation with Shiner, the appellant approached the agent and indicated
[ 236 Pa. Super. Page 592]
to him that Shiner had some "grass". The entire group including the defendant, his female friend, her child, Shiner, and the two agents then proceeded to Shiner's residence, a mobile home in a trailer park. At Shiner's home another person, John Dustin, appeared on the scene bringing the narcotics with him. The marijuana was passed from Dustin, to Shiner, to the agent and $200.00 was passed from the agent, to Shiner, then to Dustin, whereupon Dustin left the premises. The appellant was present throughout this transaction but did not handle the marijuana nor the money. The agents could not remember any further conversation with appellant about drugs other than his initial introduction of them to Shiner. The court then found the defendant guilty of being an accessory before the fact to the sale of marijuana.
Under the old Crimes Code of Pennsylvania in effect at the time of this incident of which defendant was convicted, every accessory before the fact to any felony could be punished as if he was the principal. 1939, June 24, P.L. 872, § 1105, 1943, May 21, P.L. 306, § 1, 18 P.S. § 5105. The defendant was charged, tried and convicted of being an accessory before the fact.
Defendant cites the case of Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972) for the proposition that the facts adduced at trial by the Commonwealth were insufficient to sustain his conviction. In Simione, supra, the Supreme Court held that a defendant who was persuaded by the buyer of a prohibited substance, who was an undercover agent, to arrange the deal through a third party, and who acted as an intermediary in the deal, but who did not receive any proceeds of the sale and was not an agent of the seller could not be convicted of "selling" the proscribed substance. Unlike the situation in Simione the defendant in this case was not charged with selling the proscribed substance but was charged with being an accessory before the fact who
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aided and abetted the sale. (Emphasis added). In Simione the court specifically directed itself to the charge of selling since a bill of particulars provided to the defendant by the district attorney specified that as the charge and since the lower court's charge to the jury unmistakably set forth the question of whether the defendant sold the drug as the sole issue for the jury's consideration. (Emphasis added). These factors played an important part in the Supreme Court's opinion in that case. This is also true of United States v. Moses, 220 F. 2d 166 (3d Cir. 1955). However, in the instant case the defendant was not charged with selling but with being an accessory to the sale. Therefore we do not feel that the ruling in Simione is determinative of the issue before us in this case. Our sole issue is whether the defendant "aided, abetted or counseled" the sale of the prohibited substance. In such case, the test is not the intention or willingness of the parties actually engaged in the commission of the offense, but rather what the one who is charged with being an accessory before the fact did in relation to the commission of the offense. Commonwealth v. Mourar, 167 Pa. Superior Ct. 276, 74 A.2d 732 (1950). We find that the defendant did "aid, abet and counsel" the commission of the crime, i.e., the sale of the marijuana. It was the officer's testimony that it was the appellant who set up the sale of the marijuana, between Shiner and the officer. Without appellant's actions the sale of the drug would not have been accomplished since it was he who knew that the officer desired to purchase the drugs and it ...