No. 1133 October Term, 1978, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, County of Philadelphia on Nos. 227-228 of July Term, 1977.
Gilbert E. Toll, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, Hester and Hoffman, JJ. Hester, J., concurs in result.
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Appellant contends that the evidence adduced at trial was insufficient to prove him guilty of violating the Controlled Substance, Drug, Device, and Cosmetic Act (the "Drug Act")*fn1 and criminal conspiracy.*fn2 Specifically, appellant contends that (1) the testimony of the arresting officer who bought heroin from him was insufficient to establish his identity and (2) there was no evidence showing that appellant conspired with his wife to sell the heroin. We find the evidence insufficient to convict appellant of conspiracy and, accordingly, vacate and remand for resentencing.
On May 31, 1977, Philadelphia police arrested appellant on charges that he sold heroin on May 12, 1977 and conspired with Rochelle Mears to achieve the sale. On August 16, 1977, after a non-jury trial, in which appellant was the only
[ 265 Pa. Super. Page 498]
defendant,*fn3 the lower court found him guilty of both charges. After denying timely filed written post-verdict motions the lower court sentenced appellant to "time in" to 23 months imprisonment on the Drug Act charge and one year of consecutive probation on the conspiracy charge. This direct appeal followed.
"In appraising the sufficiency of evidence, we must apply a two-step test. First we must regard the evidence in the light most favorable to the Commonwealth, accepting as true all evidence upon which the fact finder could properly have based its verdict; then we must ask whether that evidence, with all reasonable inferences from it, was sufficient to prove guilt beyond a reasonable doubt." Commonwealth v. Eddington, 255 Pa. Super. 25, 386 A.2d 117, 117-18 (1978). See Commonwealth v. Hamm, 474 Pa. 487, 378 A.2d 1219 (1977); Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976). "This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt." Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977).
Regarded in the light most favorable to the Commonwealth, the evidence presented at appellant's trial may be summarized as follows:
At approximately 8:45 p. m. on May 12, 1977, "as a result of information received," Officer Bongard went to 2709 54th Drive in Philadelphia. A man whom Bongard unequivocally identified as appellant approached Bongard and asked what he wanted. Bongard said he was looking for "Walt or Frazier." Appellant identified himself as Frazier. Bongard told appellant that he wished to buy some heroin. Appellant agreed to sell Bongard 11 bags of heroin for $50. At appellant's request, Bongard accompanied ...