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COMMONWEALTH PENNSYLVANIA v. ROBERT ALLEN HICKS (09/27/76)

decided: September 27, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT ALLEN HICKS, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, Phila. County Imposed on Indictment No. 0454, March Session, 1973. No. 961 October Term, 1975.

COUNSEL

Sebastian M. Rainone (Court Appointed), Philadelphia, for appellant.

Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., notes his dissent.

Author: Spaeth

[ 243 Pa. Super. Page 172]

On August 8, 1973, appellant was convicted by a judge sitting without a jury of possession of a controlled

[ 243 Pa. Super. Page 173]

    substance with intent to deliver,*fn1 and on October 12 he was sentenced to two and one-half to fifteen years in prison. After a Post Conviction Hearing Act*fn2 hearing on May 1 and 14, 1974, appellant was granted leave to file a motion in arrest of judgment nunc pro tunc. This motion was subsequently denied and no appeal was taken. However, on February 14, 1975, a second PCHA hearing was held and appellant was granted leave to file an appeal nunc pro tunc.

Appellant's sole contention is that the evidence was insufficient to establish beyond a reasonable doubt that he was illegally in possession of a controlled substance with intent to deliver. "In determining whether the evidence is sufficient in law to prove that a defendant is guilty beyond a reasonable doubt of the crime or crimes charged, we must, after a verdict of guilty, accept as true all of the evidence, direct or circumstantial, and all reasonable inferences arising from the evidence, upon which the trier of facts could properly have based the verdict." Commonwealth v. Fortune, 456 Pa. 365, 367, 318 A.2d 327, 328 (1974). By this test the evidence was insufficient. We therefore reverse.

On January 1, 1973, three Philadelphia police officers, armed with a search warrant, went to 1719 Wagner Street, Philadelphia. The name on the warrant was "Bobby." Bobby was described as a Negro male, 28 to 33 years of age, five feet seven inches tall, weighing 145 pounds, and having a mustache.

As the officers approached 1719 Wagner Street they saw appellant drive up in his car and park. They followed him as he went onto the front porch and began to open the door. One officer identified himself and gave

[ 243 Pa. Super. Page 174]

    appellant a copy of the search warrant. Appellant let the officers ...


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