Stephen R. LaHoda, First Asst. Public Defender, Levittown, for appellant.
Stephen B. Harris, First Asst. Dist. Atty., for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., concurs in the result.
Appellant, Roger Duane Wisor, was convicted following a non-jury trial of possession of a controlled substance (marijuana) in violation of The Controlled Substance, Drug, Device and Cosmetic Act of 1972, Act of April 14, 1972, P.L. 233, 35 P.S. § 780-101 et seq., as amended. He was sentenced to pay a fine of $200.00
plus costs of prosecution, and the judgment was affirmed by the Superior Court. We granted appellant's petition for allowance of appeal and this appeal followed.
Appellant's sole contention is that there was insufficient evidence to sustain a conviction for possession of a controlled substance. We agree, and, accordingly, reverse the judgments of sentence and grant a new trial.
Viewing the evidence in light most favorable to the prosecution and drawing all proper inferences favorable to the prosecution, Commonwealth v. Robson, 461 Pa. 615, 337 A.2d 573 (1975), the facts are as follows:
On July 15, 1972, a Middletown Township police officer was patrolling at the rear of a local shopping center when he spotted a parked two-door sedan, seemingly unoccupied, with loud music playing. The officer approached the car and a young woman, therein, sat up. The officer turned on his flashlight and checked the front and back seats and the floor, but found nothing suspicious. He exchanged a few words with the young woman and left. However, he kept the car under surveillance by observing it from a distance with binoculars. During a period of ten minutes in which he observed the car, he saw people walking to the vehicle. He radioed for assistance and pulled up behind the car. At that time, appellant was sitting behind the wheel of the observed car and its motor was running. In addition to appellant, there were five passengers in the car and a man standing outside the car facing the open window of the right door. The police requested everyone to exit the car. When the front-right passenger's seat was pushed forward to permit exit by those in the back, the police officer who had been observing the car, saw a corn cob pipe with aluminum foil in the bottom of the bowl lying in the space beneath the back of the right-front passenger's seat. The pipe was made visible only after the front-right passenger's seat was pulled forward. The residue in the bowl was identified by the officer as marijuana.
Laboratory tests confirmed the presence of marijuana in the pipe found by the officer. No ...