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COMMONWEALTH PENNSYLVANIA v. RICHARD VICKERS (11/22/78)

decided: November 22, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD VICKERS, A/K/A RICHARD TURSI, APPELLANT



No. 242 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division, at Nos. 4271-76, 4271.2-76.

COUNSEL

Van Weiss and George B. Ditter, Assistant Public Defenders, Norristown, for appellant.

Ross Weiss, First Assistant District Attorney, Elkins Park, and William T. Nicholas, District Attorney, Norristown, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, President Judge, concurs in the result. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Cercone

[ 260 Pa. Super. Page 472]

This is an appeal from appellant's conviction for violation of the Controlled Substance, Drug, Device & Cosmetic Act and for criminal conspiracy. Appellant raises numerous issues; however, for the reasons set forth below, we affirm appellant's conviction.

The Commonwealth alleged that on June 4, 1976 at 4:40 P.M., appellant sold two cigar boxes containing drugs, including nalorphine, to Joseph Amato, an undercover agent of the Bureau of Drug Control of the Pennsylvania Department of Justice. It was said that this transaction took place in the kitchen of appellant's apartment in Norristown, Pennsylvania. Also present was appellant's accomplice, John McManus (a/k/a John North). In another room was Daniel Josephs, an informant.

At appellant's trial, Agent Amato testified that the informant Daniel Josephs told Agent Amato that appellant was involved in selling drugs. Agent Amato later was introduced to appellant on May 27, 1976, who told Amato that he had access to certain drugs. Arrangements were later made for Amato to buy some drugs and, on June 4, 1977, Agent Amato and Josephs met with appellant and John McManus at appellant's apartment to complete the deal.

Appellant and Agent Amato went to the kitchen to discuss which drugs were to be sold. Appellant then went into the next room to get the two boxes of drugs. When appellant returned to the kitchen, McManus was with him. The drugs were sold to Agent Amato for $150.00. Since Agent Amato only had $125.00 on him, he asked appellant if it would be all right to pay the remaining $25.00 later. Appellant agreed.

[ 260 Pa. Super. Page 473]

According to Agent Amato, appellant said that he would be getting some desoxyn (an amphetamine) later that day. Agent Amato told appellant that he would also like to buy some desoxyn and the two men agreed to meet later in the evening. Agent Amato testified that he did meet with appellant at Agent Amato's "undercover apartment" in Whitpain Township, where appellant gave Agent Amato a medicine bottle containing twenty-five desoxyn tablets in exchange for $67.00.

Appellant gave a different account of these transactions. Appellant said that he met Daniel Josephs in the early part of 1976. At that time appellant was on the methadone program and had been for about eight months trying to cure his heroin habit. After appellant and Josephs had known each other for a while, Josephs allegedly convinced appellant to start using a different drug called methadrine on which appellant also became addicted. Appellant testified that he and Josephs shared an apartment for a few weeks in March or April of 1976 where they found the two boxes of drugs under the sofa after their other roommate, an unnamed individual, moved; that he and Josephs both sampled the drugs when they first discovered them and found that the drugs were not very potent; that Josephs then took the drugs with him when he moved to a different apartment; that Josephs promised to sell appellant methadrine if appellant would in turn sell some drugs to Josephs' friend, who turned out to be undercover Agent Amato. Appellant agreed and Josephs allegedly brought the two cigar boxes of drugs over to appellant's apartment. It was these drugs that appellant sold to Agent Amato. As for the second sale, appellant contends that such a transaction never occurred.

Appellant does not deny that he sold the two boxes of drugs to Agent Amato but asserts entrapment as his defense. Where an accused claims entrapment and the testimony at trial is conflicting, the general rule is that this becomes a question for the factfinder to determine. Commonwealth v. Clawson, 250 Pa. ...


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