Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, at Nos. 735, 736 Criminal Division 1975. No. 125 March Term, 1976.
Joshua D. Lock, Philip D. Freedman, Harrisburg, for appellant.
Marion E. MacIntyre, 2nd Asst. Dist. Atty., Harrisburg, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result.
[ 242 Pa. Super. Page 305]
Appellant was convicted by a jury of two counts of delivery of heroin.*fn1 Appellant contends that the court
[ 242 Pa. Super. Page 306]
erred in denying her pre-trial motion to sever the two charges, and in instructing the jury that the defendant had the burden of proving entrapment by a preponderance of the evidence.
Appellant concedes that the Commonwealth's evidence, if believed, was sufficient to prove her guilt beyond a reasonable doubt. At trial, the Commonwealth relied primarily on the testimony of Brenda Townes, an undercover narcotics agent employed by the Pennsylvania Bureau of Drug Control, who operated in the Harrisburg area from December 24, 1974, until February 26, 1975. In her undercover work, Agent Townes employed Edgar Smith, a known heroin addict, as an informant and as a means of introduction in the community. According to Agent Townes, she and Smith went to an apartment located at 1901 Green Street at approximately 8:00 p. m., on February 18, 1975. Appellant opened the door and stated "I only have one thing here." Appellant then gave Agent Townes one bag of heroin in exchange for $10. Approximately two hours later, Agent Townes and Smith returned to the apartment and purchased a second bag of heroin.
Appellant defended the first charge by testifying that she was not at the Green Street apartment until 9:45 p. m., on February 18. In support of her alibi, appellant called the lessee of the apartment and another individual. In regard to the second charge, appellant testified that she was a user of heroin and, therefore, had one bag for her personal use. She testified that she sold the heroin to Smith, not Agent Townes, and did so only because Smith pleaded with her and told her that he was undergoing withdrawal.*fn2 The jury, however, convicted appellant on both counts.
[ 242 Pa. Super. Page 307]
We recently summarized the applicable standards for the consolidation of charges at one trial: "The test of whether consolidation is proper is related to the test of whether evidence of one crime may be admitted at the trial for another. The present rule in Pennsylvania is that consolidation is proper (i. e., the denial of a motion for severance is not an abuse of discretion) if (1) the facts and elements of the two crimes are easily separable in the minds of a jury; and (2) the crimes are such that the fact of the commission of each crime would be admissible as evidence in a separate trial for the other. Commonwealth v. Irons, 230 Pa. Super. 56, 62, 326 A.2d 488, 491 (1974), interpreting the plurality decision in Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973). See also Commonwealth v. Mullen, 228 Pa. ...