No. 211 April Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, at No. 7406617A.
John J. Dean and John H. Corbett, Jr., Assistant Public Defenders, Pittsburgh, for appellant.
Robert L. Eberhardt, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files an opinion in support of affirmance in which Cercone and Van der Voort, JJ., join. Spaeth, J., files an opinion in support of reversal in which Jacobs, President Judge and Hoffman, J., join. Watkins, former President Judge, did not participate in the consideration or decision of this case.
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The six Judges who heard this appeal being equally divided, the judgment of sentence is affirmed.
PRICE, Judge, in support of affirmance:
Appellant was convicted of possession of a controlled substance in violation of The Controlled Substance, Drug,
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Device and Cosmetic Act,*fn1 and of bringing contraband into a prison.*fn2 The trial was before a judge, the appellant having waived jury trial. The sole issue presented on this appeal is the sufficiency of the evidence. After reading the record in the light most favorable to the Commonwealth, which is entitled to all reasonable inferences arising from the verdict, we conclude that the evidence is sufficient to prove guilt beyond a reasonable doubt.
This record establishes that on September 10, 1974, at approximately 7:00 p. m., a correctional officer of the Allegheny County Jail, while inspecting a cell block, observed appellant, an inmate of the jail assigned to that cell block, alone in his cell. Appellant was the only assigned inmate of that cell. Appellant was sitting on his bed injecting a substance into his arm. (NT 7-8). Before entering the cell, in accordance with jail policy, the officer summoned another officer and both entered appellant's cell within fifteen (15) to thirty (30) seconds following the observation. (NT 8-9). At the time the officers entered the cell, the cell door was unlocked. (NT 9). They observed appellant standing in front of the commode with his back to the door. Also, the officers found a plunger to a syringe and a Vaseline jar lid, with the bottom burned, in the sink. Two (2) red syringe needle caps were discovered on appellant's bunk and two (2) aluminum foil packets were found in the bedding. (NT 9-10). The first officer observed bloody fluid and a pinch mark, which appeared to have been made by a strap, on appellant's arm. (NT 11). The substance in the aluminum foil packets was identified as heroin and quinine, and quinine residue was also found in the two (2) red syringe needle caps. (NT 12-13).
Appellant was on a work release program which allowed him to leave the prison every day, returning before 4:30 p. m. (NT 14-16). The officer testified that it is a jail policy to lock the cells of prisoners who are not present, but he could
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not positively testify that appellant's cell was in fact locked on that day. The officer further testified that it is a jail policy to subject all returning prisoners, before re-entry to prison, to a pat search and a strip search, although he could not positively testify that appellant was in fact subjected to those searches on that day. It is possible, according to the testimony, that a person could come back into the prison without being strip searched, and it is also possible, according to the same testimony, for a prisoner to smuggle some packets of heroin and a syringe even if that prisoner was strip searched. (NT 22-24). Each of the packets of heroin found in the bedding were folded over several times and were about the size of a dime. (NT 11).
The sufficiency of the evidence in regard to the possession conviction is so evident that a challenge thereof truly merits the label of "frivolous". The appellant was actually seen injecting the substance into his arm, ...