No. 1826 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Northampton County, Criminal Division at No. 581-1978
Mildred A. Molino, Easton, for appellant.
John E. Gallagher, District Attorney, Easton, for Commonwealth, appellee.
Spaeth, Brosky and Van der Voort, JJ. Van der Voort, J., dissents. Spaeth, J., files concurring opinion.
[ 286 Pa. Super. Page 284]
Appellant was convicted at trial without a jury of possession with intent to deliver heroin. Candia was ordered to pay costs of prosecution, make restitution of One Hundred Dollars ($100) and be incarcerated for nine (9) months to two (2) years. Post-trial motions were filed by trial counsel;
[ 286 Pa. Super. Page 285]
and at all post-trial proceedings, appellant was represented by new counsel. On January 29, 1979, an evidentiary hearing pursuant to post-trial motions was held to determine if trial counsel was effective. Original counsel was found effective.
Candia presents two issues before us for determination. First, he claims the verdict was against the weight of the evidence. And, second, he asserts that he received ineffective assistance of counsel at trial.
Appellant was arrested on February 16, 1978. Candia, undercover police officer, Ms. Denise Duez, and informant, Ms. Bonnie Johnson -- an admitted heroin user -- met at appellant's house where Johnson planned to purchase heroin. Johnson asked appellant for One Hundred Dollars' ($100) worth of heroin. Candia allegedly secured some foiled-covered packages from an upper floor of the house, brought them downstairs -- as witnessed by Johnson and Duez -- and asked Johnson to go with him to another room outside Trooper Duez's view. Johnson then returned to Duez who witnessed the foil parcels in Johnson's possession.
The Commonwealth presented Johnson's testimony to prove their case. It was corroborated in substantial part -- as to all incidents within Duez's perception -- by Trooper Duez at trial. However, appellant contends that Johnson's testimony is not credible and that Duez's corroborating statements presented evidence she physically could not have witnessed. Specifically, Duez stated she saw appellant carry the packets downstairs from the second floor. Candia presented an expert who demonstrated by a drawing that Duez's position in the house would not have permitted such a view. Johnson testified the actual transfer of heroin and money occurred in a separate room outside Duez's vision. However, appellant's witness, Jeanette Glenn, stated she was with all the parties during their interchange and that no one left the one room where all persons sat.
Johnson has used heroin for the past eight years, has been convicted of retail theft, and was arrested immediately prior to the events in ...