Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, No. 155 of 1975, in case of Commonwealth of Pennsylvania v. Nathaniel Toby Wilds.
Robert M. Going, with him Zimmerman & Going, for appellant.
John A. Kenneff, Assistant District Attorney, with him D. Richard Eckman, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Price and Van der Voort, JJ., dissent.
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Appellant raises five contentions in this appeal from
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his March 25, 1975 conviction for possession of a controlled substance with intent to deliver.*fn1 He argues that the evidence was insufficient, that he was entitled to a jury charge on the lesser offense of possession of less than thirty grams,*fn2 that the trial judge made prejudicial comments during his summary of the evidence, that the court below should have suppressed evidence seized pursuant to a defective search warrant affidavit, and that the court erred in admitting evidence of criminal conduct which was irrelevant to the offense charged.*fn3
The following facts led to appellant's arrest and conviction. On November 8, 1974, Detective Jan Walters of the Lancaster Bureau of Police applied to a district magistrate for a warrant to search a house occupied by appellant. The magistrate issued the warrant. Because Detective Walters was preparing to go off duty, he gave the warrant to Detective Herman W. Simms. Detective Simms executed the warrant on the evening of November 8, with the assistance of Detective Luther Henry, Officer Kenneth R. Bomberger, and several uniformed officers. When the officers knocked at the door, a man identified as Kenneth Jones answered. He summoned appellant, who admitted the officers. There were two women, Jones and appellant in the living room when the officers entered. Simms read appellant his Fifth Amendment rights, and Officer Henry searched him. Appellant had a small quantity of marijuana on his
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person.*fn4 The officers then asked appellant for his gun and threatened appellant with "tearing the place apart" if he did not surrender the marijuana. Appellant led the officers upstairs to one of three bedrooms. He opened a chest of drawers and gave them a .32 caliber pistol in its holster. He opened another drawer and surrendered a large quantity of marijuana.*fn5 Unsatisfied that all contraband had been produced, the officer continued to search. The police found two more large bags of marijuana in the same bedroom. In toto, the police seized 1997.2 grams of marijuana. The officers also found a large number of radios and watches in the same room as the marijuana. Appellant told the officers that he held these items as collateral for loans to friends. The officers also seized a recent telephone bill listing the searched premises as appellant's residence.
On March 3, 1975, appellant was indicted for possession of marijuana with intent to deliver.*fn6 He was not indicted for mere possession*fn7 or for possession of a small quantity (under thirty grams).*fn8 After the jury
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heard all the evidence, appellant submitted points for charge on the offense of possession of a small amount of marijuana.*fn9 The court denied these proposed points for charge on the grounds that appellant was only indicted for possession with intent to deliver.
The jury retired and subsequently returned a verdict of guilty. Appellant filed post-verdict motions for new trial and in arrest of judgment raising all the issues which are now presented to this Court on appeal. The court by President Judge Johnstone denied the post-verdict motions and sentenced appellant to 11 1/2 to 23 months' imprisonment and to pay costs and a hundred dollar fine. This appeal followed.
Appellant first urges that the evidence was insufficient to establish possession and argues that the case is controlled by Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974).
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When possession of contraband is charged, the Commonwealth must prove conscious dominion over the contraband, and mere presence at the scene is insufficient. Commonwealth v. Fortune, supra. However, in determining whether the evidence is sufficient in law to prove that an accused is guilty beyond a reasonable doubt of the crime of possession of a controlled substance, this Court must, after a verdict of guilty, accept as true all of the evidence, direct and circumstantial, and ...