John Alan Havey, Aliquippa, for appellant.
Anthony J. Berosh, Keith R. McMillen, Asst. Dist. Atty., Beaver, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., files a dissenting opinion.
Appellant, Richard P. Chenet, was tried by a judge and jury in Beaver County and convicted of possession of a controlled substance. Appellant filed post-verdict motions for a new trial and in arrest of judgment. The court en banc granted appellant a new trial, but refused to arrest judgment. The Superior Court, by a four-three vote, affirmed the order of the court en banc denying the motion in arrest of judgment.*fn1 Commonwealth v. Chenet, 237 Pa. Super. 226, 352 A.2d 502 (1975). Appellant filed a petition for allowance of appeal, which this court granted on March 26, 1976.
Appellant claims the evidence is insufficient to sustain his conviction and that both the Superior Court and the court en banc erred in refusing his motion in arrest of judgment. We agree and, therefore, reverse and discharge appellant.
When reviewing a denial of a motion in arrest of judgment, we must view all of the Commonwealth's evidence introduced at trial in the light most favorable to the Commonwealth with all reasonable inferences therefrom. Commonwealth v. Terenda, 433 Pa. 519, 252 A.2d 635 (1969). The evidence introduced by the Commonwealth is as follows.
On May 19, 1973, three Beaver County deputy sheriffs obtained a search warrant for appellant's trailer. Upon arrival at the trailer park, the sheriffs found the trailer locked and had to wait until 10:20 p. m., when appellant's roommate arrived with his girlfriend. A search turned up a few marijuana seeds on the kitchen floor,
marijuana cigarette butts in an ashtray in the livingroom and a "baggie" containing marijuana residue in the livingroom. The officers then found approximately 80 grams of marijuana in a milk delivery box attached to the trailer hitch. The search was completed at 11:30 p.m.
The deputies remained at the trailer until 1:15 a. m., when appellant arrived. After arresting appellant, the officers sought and were refused permission to search the automobile appellant had been driving. A second warrant was obtained and after two thorough searches of the car, the officers found two marijuana cigarettes in the console between the front seats. The car, however, belonged to appellant's attorney. Appellant had picked up the car to repair it. Appellant was the only ...