No. 328 January Term, 1976, Appeal from the Order of the Superior Court of Pennsylvania filed October 28, 1975, at No. 577 October Term, 1974, affirming the Judgment of Sentence of the Court of Common Pleas of Luzerne County, Criminal Division, at No. 374 of 1973
James F. Geddes, Jr., Wilkes-Barre, for appellant.
Patrick J. Toole, Jr., Dist. Atty., Thomas J. Glenn, Jr., Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Packel, former J., did not participate in the decision of this case. Nix, J., dissents.
Appellant was charged as an accessory before the fact under the Penal Code of 1939, § 1105, as amended, 18 P.S. § 5105 (since repealed and replaced by the Crimes Code of 1973) for his alleged participation in the sale of marijuana in violation of the Controlled Substance, Drug, Device and Cosmetic Act of 1972, § 13(a)(30), as amended, 35 P.S. § 780-113(a)(30). He was convicted after a non-jury trial, and post-verdict motions challenging the sufficiency of the evidence were denied. The Superior Court affirmed the judgment of sentence, with Judge Spaeth filing a dissenting opinion in which Judge Cercone joined. We granted appellant's petition for allowance of appeal.
Appellant argues before us, as he did below, that the evidence does not establish that he committed such acts as to make him an accessory before the fact or principal in the second degree to the felony of selling a controlled substance. We agree that the evidence is insufficient to sustain the conviction, and we therefore reverse the judgment of sentence and discharge the appellant.
In order to review the sufficiency of the evidence we are required to examine the facts in the light most favorable to the prosecution as verdict winner. The record, so viewed, establishes that in October, 1972, two agents of the Pennsylvania Department of Health, Bureau of Drug Control, were conducting undercover narcotics operations in Public Square in Wilkes-Barre. Dressed casually in the manner of other young people in the area, the agents habitually loitered in the square, mingling with others who gathered there, and occasionally approached someone for drugs.
On October 6, 1972, appellant was in the Square with a female friend and her child. One of the agents approached appellant and asked him whether he had any drugs in his
possession. Appellant answered that he did not. A few minutes later a third party, George Shiner, approached appellant and his friend, and appellant then called the agent over and introduced him to Shiner, indicating that Shiner had some marijuana. The entire group drove in the agents' car to Shiner's residence, where they were joined by yet another person, John Dustin, who brought with him a supply of marijuana. Dustin passed marijuana to Shiner, who passed it to the agent; the agent passed $200 through Shiner to Dustin. Appellant was present throughout the transaction, but handled neither marijuana nor money, nor did he enter any of the negotiations or conversation related to the sale. The agents' testimony establishes no participation other than the original introduction of the agent to Shiner.
The crime of which appellant was convicted is that of being an accessory before the fact, defined as one who plans, cooperates, assists, aids, counsels or abets in the perpetration of a felony. Commonwealth v. Leach, 455 Pa. 448, 451, 317 A.2d 293, 294-95 (1974); Commonwealth v. McFadden, 448 Pa. 146, 292 A.2d 358 (1972). Appellant's mere presence during the crime did not constitute such aiding and abetting. Commonwealth v. Finley, 477 Pa. 382, 383 A.2d 1259 (1978); Commonwealth v. Pierce, 437 Pa. 266, 263 A.2d 350 (1970); Commonwealth v. Giovanetti, 341 Pa. 345, 19 A.2d 119 (1941). An accessory must have done something to ...