Appeal From the Judgment of Sentence Imposed February 28, 1975, by the Court of Common Pleas, Criminal Division, of Lancaster County, at No. 1182 of 1973. No. 950 October Term, 1975.
Xakellis, Perezous & Mongiovi, Michael J. Perezous, Lancaster, for appellant.
Robert A. Longo (submitted), Lancaster, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a Dissenting Opinion in which Van der Voort, J., joins.
[ 241 Pa. Super. Page 413]
The sole meritorious issue in the instant appeal is whether the Commonwealth proved appellant's conscious dominion and control over a sizeable quantity of hashish, necessary to prove his possession of the controlled substance with the intent to deliver.
The facts relating to appellant's arrest are not in dispute. On May 21, 1973, United States Customs officials in New York City, using a dog specifically trained to sniff out narcotics, became suspicious that a package addressed to Mrs. Donald Farr, c/o Mr. and Mrs. James Sterling, R. D. 1, Lehoy Forest Drive, Leola, Pennsylvania, contained contraband. The Customs officials opened the package and found a pewter antique pitcher, sealed with wax. A test boring through the paraffin revealed that the pitcher contained a large quantity of hashish.
The Customs officials repackaged the pitcher and notified a Philadelphia Customs official, a Postal Inspector assigned to Philadelphia, and State Police located in Lancaster, that they were forwarding the pitcher. Before delivering the package, the State Police made another test boring to verify that the pitcher contained hashish and sprinkled the pitcher with fluorescent powder. The Postal Inspection then arranged with the rural postal carrier to attempt delivery of the package at appellant's home. At the same time, State Trooper Carl Harnish swore out a warrant authorizing a search of appellant's home.
Police set up a surveillance of appellant's residence as soon as the package was delivered at 3:30 p. m., on June 7, 1973. Appellant and his wife arrived at about
[ 241 Pa. Super. Page 4146]
:45 p. m., retrieved the package and several letters from the mailbox, and went into their home. Trooper Harnish waited approximately forty-five minutes before executing the search warrant.
Trooper Harnish found the package unopened in the kitchen. Appellant told the trooper that he had no knowledge of what was in the package. He did tell the trooper that he had recently received a postcard from friends who were vacationing in Holland; the postcard stated: "Hi y'all. Amsterdam hasn't changed a bit, Lots of young people here. Can't understand it. Keep your eye peeled for souvenirs, and we'll be seeing [you] in a couple of weeks." After the trooper seized the package, he asked appellant whether he had any other contraband in the house. Appellant retrieved from one of the bedrooms a plastic bag containing approximately 90 grams of marijuana. The officer then explained that he was not authorized by the warrant to search further and requested that appellant consent to a search of the house and his automobile. Appellant signed a consent form and permitted the search. That search netted some marijuana seeds, pipes used for smoking marijuana, and some "roaches," (marijuana cigarette "butts"). Concerning the package, appellant told the trooper that he suspected that it might contain drugs, but that he had no intention of opening it. Upon further investigation, the police estimated that the retail value of the hashish was about $9000.00.
Appellant was charged with three separate offenses under the Controlled Substance, Drug, Device and Cosmetic Act:*fn1 possession of marijuana, possession of marijuana with intent to deliver, and possession of hashish with intent to deliver. Appellant's trial by jury commenced on October 23, 1974. ...