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decided: June 28, 1976.


Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division, at No. 8204A of 1974. No. 797 April Term, 1975.


John J. Dean, Anthony J. Lalama, Pittsburgh, for appellant.

John J. Hickton, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Pittsburgh, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion in which Spaeth, J., joins.

Author: Price

[ 241 Pa. Super. Page 7]

On April 17, 1975, appellant was found guilty by a judge sitting without a jury of possession of a controlled

[ 241 Pa. Super. Page 8]

    substance (heroin)*fn1 and possession with intent to deliver a controlled substance (heroin).*fn2 Motions in arrest of judgment and for a new trial were denied on June 12, 1975, and appellant was sentenced to a term of imprisonment of eleven and one-half months to twenty-three months on the conviction of possession with intent to deliver. Sentence on the conviction of simple possession was suspended.

Appellant raises two points of alleged error on appeal. However, appellant's argument that the lower court erred in admitting opinion testimony was not raised in post-trial motions and we must, therefore, consider it waived. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). We find appellant's remaining argument, that the evidence was insufficient to sustain the conviction of possession with intent to deliver, to be without merit and we will, therefore, affirm the judgments of sentence of the lower court.

The facts indicate that on November 22, 1974, at approximately 9:20 p. m., Pittsburgh Police Detective Ralph McDaniel received information from a reliable confidential informant that appellant was carrying "a bunch of stuff" and was on his way to meet several other persons. Detective McDaniel and his partner, accompanied by the informant, drove to Centre Avenue in Pittsburgh where the informant pointed out the appellant standing in an alley near a white Buick automobile. After the informant left the officers, they approached appellant. However, appellant got into the rear seat of the Buick and it was driven away. The officers pursued by car and stopped the Buick after four or five blocks. Detective McDaniel noticed appellant leaning forward and putting his hands between his legs as if he was trying to hide something under the seat. When

[ 241 Pa. Super. Page 9]

    the detective examined the interior of the car, he found a bag containing sixteen half-spoons of heroin on the floor between appellant's legs. A further search of the Buick at the police station revealed two measuring spoons in the glove compartment and a small scale in the trunk. The Buick was registered to the driver, one of appellant's co-defendants.

It iselementary that "[e]vidence is sufficient to support a conviction if, accepting as true all the evidence and all reasonable inferences arising therefrom which (if believed) the factfinder could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime of which he was convicted. (citations omitted)." Commonwealth v. Kinnard, 230 Pa. Super. 134, 143, 326 A.2d 541, 545 (1974). When we so view the evidence in the case at bar, we find it sufficient to support the conviction.

Our supreme court has held that, under the proper facts and circumstances, possession of a sufficient quantity of a narcotic drug will permit the inference that the possessor had an intent to deliver the drug. Commonwealth v. Santiago, 462 Pa. 228, 340 A.2d 440 (1975). Although the quantity involved in Santiago was considerably greater than that in the instant case, we feel the facts here bring this case under the Santiago reasoning.*fn3

[ 241 Pa. Super. Page 10]

We are persuaded by the testimony of the arresting officer, Detective McDaniel, called by the Commonwealth as an expert witness. Detective McDaniel stated that he had been assigned to the narcotics division for nine years, and that he had made many arrests for narcotics violations during the year previous to this arrest. He was well acquainted with the drug culture and showed an in-depth knowledge of the street value of drugs and of the habits of drug users. Detective McDaniel testified, on direct examination:

" BY MR. ADAMS: (Assistant District Attorney)

Q. Is there a normal user of heroin that you have found in your work as a ...

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