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COMMONWEALTH PENNSYLVANIA v. NAPOLEON DAVENPORT (09/20/82)

submitted: September 20, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
NAPOLEON DAVENPORT, APPELLANT



No. 182 Harrisburg, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, Pennsylvania at Nos. 1587, 1587 (a) C.D. 1980.

COUNSEL

William John Fulton, Harrisburg, for appellant.

William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.

Wieand, Cirillo and Popovich, JJ.

Author: Popovich

[ 307 Pa. Super. Page 105]

After a non-jury trial, the appellant, Napoleon Davenport, was convicted of criminal conspiracy (18 Pa.C.S.A. § 903) and unlawful delivery of a controlled substance (35 Pa.C.S.A. § 780-113(a)(30)). On June 1, 1981, a sentence of 3 to 10 years imprisonment was entered for each offense and ordered to be served concurrently. This appeal followed.

On appeal, appellant assails the sufficiency of the evidence and claims that the trial court erred in allowing opinion testimony to be admitted into evidence regarding the typical modus operandi of drug sellers and erred in refusing to grant a mistrial. We affirm the judgment of sentence.

The test to be utilized in evaluating appellant's sufficiency of evidence argument is whether, viewing the entire record in the light most favorable to the Commonwealth, a finder of fact could reasonably have found that all elements of the crime charged had been proved beyond a reasonable doubt. Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976).

Examination of the evidence pursuant to the preceding standard reveals the following: From May until September of 1980, Philadelphia police officer Miles Edward, Jr., was assigned to the Harrisburg area to conduct, in conjunction with the Pennsylvania State Police, a drug investigation in an undercover capacity for the Federal Drug Enforcement Administration. Also, during this period of time, the undercover agent traveled with an informant.

[ 307 Pa. Super. Page 106]

On July 23, 1980, at approximately 9:40 p.m., Officer Edward and his informant were standing on the corner of Third and Verbeke Streets in Harrisburg. A vehicle approached and the informant stated something to the driver, who reacted by pulling the vehicle over to the side of the street and parking. However, neither the driver nor the other occupant stepped out of the vehicle. Rather, the ensuing discussion and transaction were effectuated with the agent and informant standing on the passenger side of the vehicle. The appellant was visible to the officer, for he (appellant) was sitting in the front seat.

Initially, the informant engaged the driver in a conversation which elicited a remark that "he (the driver) only had a fifty dollar package of heroin," specifically referred to by the driver in street jargon as "boy". (N.T. 12) The officer then asked if he could have three packages for $120.00. The driver responded that he would sell him three $50.00 packages for $125.00. The officer agreed and handed $130.00 to the appellant to give to the driver, since the appellant was in between the two. After the appellant asked the officer if he had the exact amount, the $130.00 was passed to the driver, who, in turn, gave the appellant the three packages of heroin to give to the officer. At this point, appellant asked the driver if he could have change for ten dollars so he could give the officer the $5.00 owed to him. The driver said, "No." As a result, appellant exited the vehicle and made his way over to a tavern located at Verbeke and Susquehanna Streets. Upon returning, the appellant gave the officer his change.

After the transaction was completed, the group dispersed and the officer copied down the license number of the vehicle. The substance was, thereafter, tested and found to be heroin. Following this determination, the ...


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