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COMMONWEALTH v. LANDY (04/22/76)

decided: April 22, 1976.

COMMONWEALTH
v.
LANDY, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, No. 75-002914, in case of Commonwealth of Pennsylvania v. Joseph Landy.

COUNSEL

Reggie B. Walton and John W. Packel, Assistant Defenders, and Benjamin Lerner, Defender, for appellant.

Laurence H. Brown, 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 Hoffman, J. Spaeth, J., concurs in the result.

Author: Hoffman

[ 240 Pa. Super. Page 461]

Appellant challenges the lower court's denial of his petition for return of money seized at the time of his arrest, filed pursuant to Rule 324, Pennsylvania Rules of Criminal Procedure, on the following grounds: first, that the lower court erred in admitting prejudicial hearsay testimony, and second, that the Commonwealth failed to produce sufficient evidence to demonstrate beyond a reasonable doubt that the money was derived from the illegal sale of narcotics.

The appellant, Joseph Landy, was arrested on August 2, 1973 and charged with possession*fn1 and possession with intent to deliver*fn2 a controlled substance in violation of The Controlled Substance, Drug, Device and Cosmetic Act. On April 15, 1975, appellant petitioned the court for an order dismissing the charges with prejudice pursuant to Rule 1100(f), Pa.R.Crim.P. Appellant's petition was

[ 240 Pa. Super. Page 462]

    granted on May 15, 1975, and the indictments were dismissed. On May 22, 1975, appellant petitioned the court, pursuant to Rule 324, Pa.R.Crim.P., for return of money confiscated at the time of his arrest.

The following facts were developed at the July 8, 1975 hearing on appellant's petition. Officer Arthur Beckman, the Commonwealth's sole witness, testified that at approximately 10:30 A.M. to 10:45 A.M. on August 2, 1973, he and his partner were conducting a surveillance of the corner of Broad and Snyder Streets, Philadelphia. At that time, he observed one Antone Pescala accept an undetermined sum of money from two individuals. While his partner kept the two individuals under surveillance, Officer Beckman followed Pescala to a nearby street where Pescala gave the appellant the money in exchange for some pills. Appellant put the money in his left pocket, and Pescala subsequently "passed something" to the two individuals. Still following Pescala, Officer Beckman observed him accept a second undetermined sum of money from a different individual. Pescala again took the money to the appellant in order to exchange it for pills. The appellant took the money and began "pouring pills from the plastic vial into Pescala's hand"; Officer Beckman then identified himself, arrested both appellant and Pescala, and confiscated the pills and $552 from appellant's left pocket.

The appellant, the sole witness for the defense, testified that his mother gave him $500 of the $552 to purchase an automobile for her. Appellant also denied participating in the sale of narcotics, and stated that the pills in his possession had been prescribed by a doctor.

The lower court denied appellant's petition at the end of the July 8, 1975 hearing. The lower court specifically found that "the Commonwealth is not held to the same degree of proof as required in a criminal trial," and that "the Commonwealth has sustained its burden of showing that the money formed an integral part of the illegal narcotics activity." This appeal followed.

[ 240 Pa. Super. Page 463]

I

Rule 324, Pa.R.Crim.P., provides ...


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