No. 80-2-281, Appeal from the Order of the Superior Court, dated December 28, 1979, No. 130 March Term, 1978, affirming the Judgment of Sentence of the Court of Common Pleas of York County, No. 75 Criminal Action, 1978
Harold N. Fitzkee, Jr., Philadelphia, for appellant.
John C. Uhler, Dist. Atty., Sheryl Ann Dorney, Asst. Dist. Atty., for appellee.
Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. O'Brien, C. J., did not participate in the consideration or decision of this case.
Appellant and his co-defendant, Elizabeth Fells, were charged with possession of a controlled substance,*fn1 possession with intent to deliver a controlled substance,*fn2 and criminal conspiracy.*fn3 After a jury trial, appellant and his co-defendant were found guilty of possession with intent to deliver and conspiracy. Appellant was sentenced to a term of imprisonment of not less than seven and one-half nor more than fifteen years. He was also ordered to pay a fine of $100,000.00. Post-trial motions were denied and, on appeal, the Superior Court affirmed, filing a memorandum opinion. 277 Pa. Super. 635, 424 A.2d 557. Judge Lipez filed a dissenting memorandum opinion. We granted appellant's petition for allowance of appeal and now reverse.
The sole issue raised by appellant in his petition for allowance of appeal and, therefore the sole issue before us now,*fn4 is whether the trial judge erred in his instructions to the jury concerning the possible verdicts the jury could render in this case.
The Commonwealth's evidence at trial established that on January 4, 1978 the police obtained a warrant to search a residence after an informant, who had been searched and given marked money, entered the property at about 5:00 p.m. and returned with heroin. At 9:00 p.m. when the police knocked on the glass storm door of the residence, a Bonnie Lee Sease, opened the inner door, looked through the glass, and slammed the door. Police then broke open both doors with force making considerable noise. Finding no one on the first floor they went upstairs. As one officer approached a back bedroom, which was illuminated only by the light from a television, he saw the appellant standing in the doorway of the bedroom with his arms outstretched behind the doorjamb. When the officer said "Police, freeze" appellant's hands went over his head. Co-defendant Fells was found sitting behind appellant on a bed. A search of the room uncovered forty packets of heroin in the pocket of a pants suit belonging to Fells which was hanging on a hook on the wall near the door very close to where appellant's left hand would have been if stretched in that direction. Each packet of heroin was estimated to have a retail value of twenty-five dollars.
Fells occupied the back bedroom of the residence and Sease, the front bedroom. Appellant did not live there but he was Fells' boyfriend and a frequent visitor. Appellant claimed a bag of money that was found in the room and correctly identified the amount of currency therein. Appellant stated he received no money from either Fells or Sease that evening. Sixteen hundred dollars in cash was found in appellant's wallet including the marked money which had
been given to the informant. According to one officer's testimony when Fells was questioned at the scene about whether she was selling heroin from the house, she said: "Maybe I was selling it." Sease testified she was unaware of the heroin in Fells' bedroom but admitted possession of ...