No. 1917 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Northampton County, at No. 100 January Term, 1975.
Gary Neil Asteak, Easton, for appellant.
Alan B. McFall, Assistant District Attorney, and John E. Gallagher, District Attorney, Easton, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs and Spaeth, JJ., concur in the result.
[ 251 Pa. Super. Page 157]
The instant appeal arises from appellant's conviction, after a jury trial of theft by deception. Crimes Code, 18 Pa.C.S. § 3922 (1973). The offense occurred when appellant, Tony (Carmen) Fucci, and his paramour, Glenda Volkert, sold baking soda to an undercover State Police officer after representing the substance to be heroin. Appellant alleges that the Commonwealth failed to prove he intended to defraud the officer. Appellant also contends that he is entitled to a new trial because the trial court refused to
[ 251 Pa. Super. Page 158]
charge the jury on entrapment and on the adverse inference the jury could draw from the Commonwealth's failure to produce another eyewitness, its paid informant. Finally, appellant maintains that certain identification testimony by the State Police officer should have been suppressed. We agree with the court below that these arguments have no merit.
In the afternoon of October 8, 1974, Steven Carroll, a paid police informant, entered the Wardell Hotel in Phillipsburg, New Jersey and struck up a conversation with a waitress there, Glenda Volkert. According to Ms. Volkert,*fn1 Carroll persistently pleaded with her to get him some drugs, or put him in touch with someone who could. Although, according to her testimony, she had stated repeatedly that she could not get drugs for him, she finally agreed to meet Carroll at 6:30 P. M. at a pizzeria near her home in Easton, Pennsylvania. She said she would bring her friend "Carmen" (or "Tony"; appellant was known by both names, and the testimony concerning the name used varies).
In the meantime, Carroll telephoned undercover narcotics officer Francis Karvan, informed him of the impending deal, and arranged to accompany him to the pizzeria. Promptly at 6:30 P. M. Ms. Volkert and a man Trooper Karvan positively identified as appellant appeared. The group then removed to a nearby alley where amenities and introductions were exchanged, Ms. Volkert introducing appellant as "Carmen." The bogus drug transaction then began when Ms. Volkert, at Carmen's instruction, removed an aluminum foil-wrapped package from her purse. The package, containing a glassine bag filled with a white powder, was examined by Trooper Karvan. Appellant stated that it was good "smack" (heroin), and that he had used some earlier in the day and was still a "little high" from it. Karvan then paid appellant $120 and the parties separated. Subsequent chemical analysis revealed that the white powder was simply
[ 251 Pa. Super. Page 159]
baking soda. Three months later, when an extensive undercover narcotics investigation in the region terminated, appellant and Ms. Volkert were arrested.
Appellant's first allegation of error, that there was insufficient proof of intent to defraud, is simply not substantiated by the facts. Although Ms. Volkert claimed that appellant was not the man with her during the transaction, she also testified that she had informed the man who accompanied her that the substance in the packet was baking soda and that the transaction was a trick. It is well settled that the jury is entitled to believe some, all or none of a witness' testimony. See, e. g., Commonwealth v. Palmer, 448 Pa. 282, 292 A.2d 921 (1972); Commonwealth v. Dawkins, 227 Pa. Super. 558, 322 A.2d 715 (1974). In the instant case, the jury was entitled to believe both Trooper Karvan's testimony that Ms. Volkert's accomplice was appellant and Ms. Volkert's testimony that her accomplice had been informed prior to its sale that the content of the package was baking soda. Cf. Commonwealth v. Branch, 239 Pa. Super. 17, 361 A.2d 435 (1976). Hence, the evidence sufficiently ...