NO. 14 APRIL TERM, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, Mercer County, at Nos. 30 and 31 February 1975
Anthony V. DeCello, Pittsburgh, and DeCello, Bua & Manifesto, Pittsburgh, for appellant.
David B. Douds, Assistant District Attorney, Hermitage, and Samuel J. Orr, IV, District Attorney, Greenville, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman and Price, JJ., dissent.
[ 250 Pa. Super. Page 463]
This case arises on appeal from a judgment of sentence based on jury verdicts finding appellant guilty of possession of heroin and possession with intent to deliver in violation of the Controlled Substance, Drug, Device and Cosmetic Act of
[ 250 Pa. Super. Page 4641972]
, 35 P.S. 780-101 et seq. Post-trial motions in arrest of judgment and for a new trial have been denied. On appeal, appellant challenges the sufficiency of the evidence to sustain the jury verdicts and contends that in three instances counsel for the Commonwealth made a remark or asked questions which were so inflammatory or prejudicial as to deprive the appellant of a fair trial.
The factual circumstances of this case are not in dispute. At 12:45 A.M. on December 5, 1974, two officers of the Shenango Valley Narcotics Unit, along with other police officers, went to the front door of a residence at 824 Lee Avenue in Farrell in order to execute a search warrant. The house was jointly owned by Frank Smith, the appellant's father and Tammy Jean Smith, the appellant's wife. The elder Mr. Smith resided there with his wife and several young children and grandchildren. The appellant did not have a possessory interest in the house nor did he reside there on a regular basis.
After noticing a light in the living room, the officers knocked on the front door and shouted their identity and purpose for some two or three minutes. When there was no response, they forcibly entered. Upon entering they observed in a bed in the enclosed porch of the house a woman identified as the girlfriend of appellant. The officers also observed through an open window several men, none of whom were members of the Frank Smith household, sitting on or about a sofa in the living room. Proceeding to the living room, the officers found all the occupants, with one exception, within two or three feet of the sofa and an adjacent coffee table. They specifically observed the appellant at the far right-hand corner of the table, although he immediately attempted to move toward the door leading to the dining room where he was apprehended. When apprehended, he was described as glassy-eyed, stuporous, incoherent, staggering and weaving, a condition characteristic of one under the influence of heroin. Appellant was wearing only a pair of pants, an undershirt and suspenders and was shoeless. All the others, with the exception of his girlfriend who was in sleeping wear, were fully clothed.
[ 250 Pa. Super. Page 465]
The officers also observed on or about the coffee table 67 glassine bags of heroin, a plastic bag of uncut heroin and an open foil of heroin. The officers estimated the "street value" of these bags to be $3,000. They also observed on the coffee table various paraphernalia for the injection of the drug, including a number of syringes, a "cutting" spoon, swabs of cotton and a bottle of cleansing alcohol.
None of the parties, with the exception of one (not the appellant) who was taken into custody with a syringe in his left arm, was observed with any of the drug or paraphernalia on his person. Further, none was seen dropping nor attempting to secrete any of these objects.
Finally, appellant's bail bondsman testified that appellant had jumped bond and fled the jurisdiction but had been apprehended in New York City and returned for trial.
The appellant contends that the evidence introduced by the Commonwealth fails to establish anything more than his mere presence in the house and his knowledge that the drug was there, neither of which is sufficient to support a conviction for possession. Commonwealth v. Reece, 437 Pa. 422, 427, 263 A.2d 463 (1970).
Appellant's reliance on this position is misplaced for the Commonwealth's evidence establishes a number of circumstances linking appellant to the heroin. Most significant is the fact that appellant was found under the influence of an opiate-derived drug at the time of the raid. In Commonwealth v. Ambers, 225 Pa. Super. 381, 310 A.2d 347 (1973), this court held that evidence that the appellant and a co-defendant were under the influence of drugs at the time of a raid was sufficient to support a possession conviction. In fact, the evidence in the instant case is stronger ...