NO. 1765 OCTOBER TERM, 1975, Appeal from the Judgment of Sentence of Court of Common Pleas of Montgomery County, Criminal Division at No. 3109 July Term, 1974.
Arthur L. Gutkin, and Berkowitz & Gutkin, Philadelphia, for appellant.
Milton O. Moss, District Attorney, Norristown, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., concurs in the result. Hoffman, J., files a dissenting opinion in which Jacobs and Spaeth, JJ., join.
[ 250 Pa. Super. Page 318]
On July 6, 1974, two packages were delivered to Apartment A-6, Building 8, English Village Apartments, North Wales, Pennsylvania. The packages contained items of pottery from Morocco, and also a total of 10 pounds, 6 1/2 ounces of uncut hashish worth nearly $15,000. Appellant Robert D. Rambo, lessee of Apartment A-6, accepted the packages, signed for them, placed them on the floor in his apartment, then, unnoticed by the federal, state and local police who were observing the building, left the premises. Approximately forty-five minutes after delivery of the packages, the police, with a warrant to search the premises, entered the
[ 250 Pa. Super. Page 319]
unoccupied apartment and seized the unopened packages. In response to a note left for him by the police, appellant later reported to the police and was charged with possession with intent to deliver a controlled substance. Appellant was tried by a judge and jury, was found guilty, and was sentenced on June 27, 1975 to pay a fine of $1,000 and to serve a term of imprisonment of one to three years. Appeal was taken to our Court from the judgment of sentence.
Appellant argues that the Commonwealth failed to prove its case, and that the lower court erred in denying his demurrer and his motion for directed verdict. In Commonwealth v. Sterling, 241 Pa. Super. 411, 361 A.2d 799 (1976), our Court was faced with a somewhat similar fact situation, and found the evidence insufficient to establish that defendant was in conscious possession of a controlled substance. In Sterling, a package of hashish had been mailed from Holland to a Mrs. Donald Farr, in care of the defendant and his wife. Customs officials discovered the illegal contents of the package with the help of trained dogs, and a controlled delivery was made. Since neither defendant nor his wife was home, the package was left in the mailbox outside the house. When the defendant and his wife returned, the defendant retrieved the package from the mailbox, took it into the house, and placed it on the floor in the kitchen, where it was found by the police approximately forty-five minutes later. A jury found the defendant guilty of possession with intent to deliver hashish; on appeal, our court reversed for insufficient evidence. We find that Sterling, although somewhat similar to the case before us, is distinguishable in several important ways.
In the case before us, testimony of several police officers established that appellant had signed receipts for and had accepted delivery of two packages containing a total of nearly $15,000 worth of hashish. One of these packages was addressed to a third person in care of appellant (the situation in Sterling), one of the packages was addressed to appellant. A reasonable conclusion would be that appellant signed for and accepted delivery of a package
[ 250 Pa. Super. Page 320]
which was addressed to someone else (and which had no return address) because he was expecting it. Furthermore, it might reasonably be inferred from the fact that one package was addressed to appellant that both appellant and the sender contemplated appellant's opening that package. While guilt may never rest on mere conjecture, a conviction may stand on circumstantial evidence, and it is sufficient if the circumstances are consistent with criminal activity, even though they might likewise be consistent with innocent behavior. Commonwealth v. Moore, 226 Pa. Super. 32, 34, 311 A.2d 704 (1973). We find that the Commonwealth presented sufficient evidence to permit the jury to conclude that appellant was aware of the illegal contents of the packages, and that he possessed the packages with the intent to deliver them. The lower court properly overruled the demurrer.
After the lower court denied appellant's demurrer, appellant presented character witnesses and took the stand himself. Appellant denied knowledge of drugs in the packages, but did admit that he had received packages from his brother on prior occasions. These packages he purportedly held unopened until his brother or his brother's girl friend could come for them. It is the province of the fact-finder to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. Commonwealth v. Murray, 460 Pa. 605, 609, 334 A.2d 255 (1975). The jury in the case before us obviously did not believe appellant, possibly discrediting his testimony because of his initial refusal on cross-examination to answer a question concerning a trip he had made to North Africa. Accepting as true all direct and circumstantial evidence, and all reasonable inferences arising therefrom, upon which the jury could have based its verdict, Commonwealth v. Williams, 443 Pa. 85, 277 A.2d 781 (1971), we find the evidence sufficient to support the jury's conclusion that appellant knowingly possessed a large quantity of hashish and intended to deliver it.
Appellant argues that the Commonwealth failed to show that it was diligent in attempting to ...