No. 668 April Term, 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Criminal Division, No. CC7607527.
Louis R. Dadowski, Pittsburgh, for appellant.
Stephanie P. Popivchak, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a dissenting statement. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 265 Pa. Super. Page 93]
Following a non-jury trial on December 10, 1976, appellant was found guilty of possession of a controlled substance,*fn1 to-wit, heroin, and possession with intent to deliver a controlled substance.*fn2 Post-trial motions for a new trial and in arrest of judgment were denied, and appellant was sentenced to a term of imprisonment of from three to ten years on the charge of possession with intent to deliver a controlled substance. Sentence was suspended on the charge of possession of a controlled substance. Appellant contends that the evidence presented at trial was insufficient to establish that he was a seller of the heroin. We disagree, and affirm the judgment of sentence.
The facts pertinent to our consideration of the instant appeal are as follows. On September 28, 1976, at approximately 10:50 p. m., plainclothes Officers James Holliday and Albert Stegena of the Pittsburgh Police Department, responding to a tip from a reliable informant, set up a surveillance post in the 1700 Block of Center Avenue, located in Pittsburgh's Hill District. The Officers observed appellant at this location for a span of thirty-five minutes, and during this time, appellant paced back and forth within a one block radius. On two different occasions, appellant was approached by two different black males who exchanged articles*fn3
[ 265 Pa. Super. Page 94]
with him. Shortly after the second exchange, appellant was arrested. A search of appellant incident to the arrest produced a plastic bag containing fourteen foil packets. Subsequent chemical analysis conducted by the Department's Crime Laboratory revealed that each foil packet contained a half-spoon measure of a substance containing heroin.
Expert testimony*fn4 presented at trial indicated that the quantity of heroin found on appellant was of sufficient magnitude to indicate that appellant was in the business of selling heroin rather than retaining it for his own personal use.*fn5
We find this case to be controlled by our earlier decision in Commonwealth v. Harris, 241 Pa. Super. 7, 359 A.2d 407 (1976). The appellant in Harris was convicted of possession of heroin with intent to deliver; appellant in that case was in possession of sixteen half-spoons of heroin. In
[ 265 Pa. Super. Page 95]
affirming the judgment of sentence in Harris, this court noted that the lower court considered the police detective's testimony that the amount in appellant's possession was more than would be carried by a person for his personal use, and convicted the appellant on that basis. We held that we could not find any manifest error on the lower court's part under those circumstances. See Commonwealth v. Garvin, supra. As in Harris, we find no manifest error by the court below in according weight to the police detective's testimony and in ...