No. 717 January Term, 1977 Appeal from the order of the Superior Court of Pennsylvania, No. 2312 October Term, 1976 affirming the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lancaster County, Pennsylvania, at 953 of 1975.
Thomas G. Klingensmith, Lancaster, for appellant.
Joseph C. Madenspacher, Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case.
Appellant, Robert Gill, was charged with possession with intent to deliver a controlled substance in violation of the Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64, § 13(a)(30); as amended, 35 P.S. § 780-113(a)(30). A pretrial motion to suppress evidence was denied after a hearing and appellant was tried by a jury. Appellant was found guilty and was sentenced to a term of imprisonment of one and a half to three years. He was ordered to pay a fine of $50.00. On appeal, the Superior Court affirmed per curiam. Commonwealth v. Gill,
Pa. Super. 598, 372 A.2d 420 (1977). We granted appellant's petition for allowance of appeal.*fn1
The appellant raises a series of objections as the basis of the relief he seeks. In view of our disposition, we need only to consider the question of the sufficiency of the evidence to support a conviction of the crime charged.*fn2 For the reasons that follow, we are satisfied that the evidence does not sustain the verdict and that the appellant is entitled to a discharge.
The Commonwealth's evidence at trial established that the police had conducted an investigation in late 1974 and early 1975 into the alleged heroin-trafficking activities of one Deborah Taylor. As a result of this investigation, the police received information from a confidential informant which led them to believe that Deborah Taylor was to receive a shipment of heroin in the evening of February 8, 1975, and would be bringing the shipment into Lancaster. The police obtained a search warrant based upon this information and pursuant thereto conducted a search of Deborah Taylor's car. Packets of cocaine were seized from the vehicle and Ms. Taylor was then arrested. Three hours after the arrest, acting upon additional information provided by the informant that purchases of heroin had been made at the Taylor home, the police obtained a second warrant to search that residence. Ms. Taylor accompanied the police to the premises and led them into her home. At this time, appellant was inside Taylor's home, sitting on a sofa, next to Taylor's roommate. Upon seeing the police, appellant stood up, made a brisk movement with his hand, and then sat back down on the couch. One of the police detectives immediately walked over to the appellant and found at his feet a handkerchief which contained part of a hypodermic syringe and a "bottle cap cooker", devices commonly used to administer certain drugs. The detective then noticed an envelope sitting half on and half off a coffee table which was immediately across
from the appellant. Discovered in the envelope were eleven aluminum foil packets of a brownish substance which later turned out to be phenobarbital, a Schedule IV substance the possession of which is controlled. See 35 P.S. § 780-104(4)(i)(11). No controlled substance was otherwise found on appellant's person, although the police did discover, after a "pat down" search, the other section of the hypodermic syringe which had been ...