Appeals from judgment of sentence of Court of Common Pleas of Delaware County, March T., 1974, Nos. 203 and 204, in case of Commonwealth of Pennsylvania v. Elizabeth Mary Maurer and Charles Leo Lauber.
Ernest Kardas and David E. Auerbach, Assistant Public Defenders, and Kenneth P. Barrow, Public Defender, for appellants.
Vram Nedurian, Jr., and Ralph B. D'Iorio, Assistant District Attorneys, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Jacobs and Van der Voort, JJ., dissent as to appellant Maurer.
[ 240 Pa. Super. Page 473]
Appellants contend that the Commonwealth failed to prove constructive possession; and that, therefore, the evidence was insufficient to convict them of possession of a controlled substance*fn1 and possession with intent to deliver.*fn2
Four Pennsylvania State Troopers, a State Narcotics Bureau agent, and five officers from the Sharon Hill Borough Police Department executed a search warrant for a second floor, one bedroom apartment at 421 Sharon Avenue, Sharon Hill Borough, Delaware County, on November 16, 1973, at approximately 6:30 p.m. The officers found two brown bags containing 201 pills secreted in a sugar canister in the kitchen, 90 small tablets wrapped in a napkin hidden in a silver separater under a room divider between the livingroom and the kitchen, 12 tablets and capsules wrapped in a napkin in a dish on a television stand in the livingroom, and a brown bag containing 39 packages of various controlled substances tucked under a couch in the livingroom. No drugs were found in the personal possession or among personal effects of either appellant. Appellants were arrested and charged with possession, possession with intent to deliver, and conspiracy.
At trial on June 3 and 4, 1974, the following facts were established. Trooper Lee Wiseman testified that he was one of the officers searching the premises, that only appellants Charles Lauber and Elizabeth Maurer and Maurer's thirteen year old son were present at the time of the search, and that Elizabeth Maurer's mother, Mary Sweeney, was named in the warrant as lessee of the
[ 240 Pa. Super. Page 474]
apartment. Officer James Wingenden of the Sharon Hill Police Department then testified that he knew that appellants lived at the raided premises, but he did not explain how he knew this fact.
Appellants' counsel objected to this unsupported conclusion on the part of the witness.*fn3 Officer Wingenden testified that he was not a neighbor and did not know the appellants socially. Officer Ray Cain then testified that he also knew that appellants lived in the Sharon Avenue apartment. The basis for this conclusion was likewise not established, and appellants' counsel objected to the officer's conclusory statement. Officer Wingenden conceded on cross-examination that other persons might have been present at the apartment at some time during the raid and that he had seen Mary Sweeney, the lessee, occasionally entering and leaving. On re-direct, he testified that both men's and women's clothing were seen in the bedroom. On re-cross examination he admitted that he had no idea whether the clothing would fit either of the appellants. Trooper Thomas Stern corroborated the fact that both men's and women's clothing were seen in the apartment, but did not state whether the appellants were the owners.
After testimony by a state chemist established the type and quantity of the controlled substances, and testimony by a detective assigned to the district attorney's office established a complete chain of custody, ...