No. 2862 Philadelphia, 1980, Appeal from the Order dated December 3, 1980 by the Honorable Robert A. Wright in the Court of Common Pleas of Delaware County, at No. 754 of 1979.
Rex R. Gary, Assistant District Attorney, Media, for Commonwealth, appellant.
Roy H. Davis, Public Defender, Media, for appellee.
McEwen, Montemuro and Shertz, JJ. Shertz, J., did not participate in the consideration of this case.
[ 296 Pa. Super. Page 44]
The Commonwealth brings this appeal from an Order of the Court of Common Pleas of Delaware County granting the motion of appellee in arrest of judgment on the charge of possession with intent to deliver a controlled substance,*fn1
[ 296 Pa. Super. Page 45]
after a jury trial in which appellee, Owen X. Bagley, was convicted of both that charge and an accompanying charge of possession of a controlled substance.*fn2 In viewing the evidence in the light most favorable to the Commonwealth as verdict winner, the following facts were established. On January 26, 1979, a search and seizure warrant was issued for a 1974 black and silver Cadillac automobile owned by the appellee, Owen X. Bagley, and itemized heroin, methamphetamine, any substance used for cutting drugs and any items used to weigh, package, administer or measure controlled substances as the contraband to be seized. On that same day Chester City Police Officers Thomas Fennell and John Gretsky observed the vehicle specified in the search warrant as it passed their vehicle, followed it, and saw the driver of the Cadillac gradually decrease the speed of the car, open the driver's window and toss a small white package about the size of a pack of cigarettes to the side of the road and then accelerate rapidly. Officer Fennell stopped briefly to locate the discarded package on the side of the road, resumed pursuit, and quickly caught up to the vehicle. Officer Gretsky ordered the driver to pull to the side of the road. The driver of the vehicle, the appellee, was placed under arrest at the scene on an outstanding arrest warrant based upon a domestic complaint that had been lodged against him by his wife. Bagley was further informed by Officer Gretsky that they had a search warrant for his automobile and gave it to him. An immediate search of the person of appellee, his automobile and his male companion, Sammy Davis, at the scene of arrest revealed no contraband. While other Chester City Police Officers took appellee and the three other occupants of the vehicle, as well as the vehicle, to the police station, Officers Fennell and Gretsky returned to the area where they had observed appellee toss the white object from the car and there found a white box which contained eleven glassine bags or envelopes bound together with a rubber band. Each glassine bag contained a white powder. A field test conducted by Officer Gretsky indicated the presence of opiates.
[ 296 Pa. Super. Page 46]
At the police station, a further search of appellee and his automobile, as well as a search of the persons of his three companions revealed no contraband. Appellee was subsequently placed under arrest on the charges of possession of a controlled substance and of possession with the intent to deliver a controlled substance. Chemical analysis of the powder revealed it to be a substance containing heroin, quinine, caffeine and mannitol. The total weight of the powder was 15.3 grams and the purity of the heroin in the bags ranged from four percent to eighteen percent.
A preliminary hearing was held on February 23, 1979 and appellee was held for court on both charges. A petition to suppress the package of eleven glassine bags containing the heroin was dismissed. A trial, held before the Honorable John V. Diggins on June 20 and 21, 1979, was concluded by declaration of a mistrial after the jury was unable to agree upon a verdict. A motion to discharge the indictments, based upon a claim that the jury was deadlocked by reason of insufficient evidence, was denied by Judge Diggins and no appeal was taken from this order. After a trial which was commenced on November 7, 1979 before the Honorable Robert A. Wright, appellee was found guilty by a jury on the charges of possession of a controlled substance and of possession with intent to deliver a controlled substance.
After argument upon post-trial motions, Judge Wright, by order of December 3, 1980, granted the motion of defendant in arrest of judgment on the charge of possession with intent to deliver a controlled substance and discharged the defendant on that count. All other motions of this defendant were denied. The imposition of sentence was continued pending this appeal by the Commonwealth.
The sole contention of the Commonwealth on appeal is that the trial court erred when it granted the motion of defendant to arrest judgment on the charge of possession of a controlled substance with intent to deliver. The Commonwealth argues that the evidence presented at trial with regard to the quantity of the heroin ...