Robert Niels Tarman, Public Defender, Harrisburg, for appellant.
William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Before Wieand, Cirillo and Popovich, JJ.
[ 308 Pa. Super. Page 432]
This is an appeal from the judgment of sentence, dated July 23, 1981, by Dowling, J., in the Court of Common Pleas Dauphin County. Appellant was found guilty, in a jury proceeding, of one (1) count of possession of a controlled substance in violation of the Controlled Substance, Drug,
[ 308 Pa. Super. Page 433]
Device and Cosmetic Act*fn1 (hereinafter Act). He was sentenced to a term of imprisonment for not less thatn two (2) nor more than five (5) years. Post-trial motions were filed and denied. This appeal followed.
On July 14, 1979, two detectives were attempting to serve a warrant and capias on a person frequenting an apartment when one of the detectives saw, through the open door of the apartment, the appellant sitting on a bed moving white powder around on a book with a card. He also noticed a plastic bag between appellant's legs which contained a white powder substance. The bag was confiscated and the substance on the book was brushed into the bag by the detective. Appellant was charged with possession with intent to manufacture or deliver a controlled substance.*fn2 He admitted to the detectives at the scene, that he was snorting cocaine. The results of a field test were consistent with his statement and he was accordingly so charged. Subsequently, the contents of the bag were tested further by a chemist at the Pennsylvania State Police laboratory. These tests determined that the contents of the bag contained heroin and not cocaine. Accordingly, on March 10, 1980, the Commonwealth filed and was granted a Motion to Amend the complaint from cocaine to heroin.
At trial appellant testified that when he arrived at this apartment there were three other people in the bedroom and the plastic bag was on the bed. He said that he was given a small amount of cocaine by a Spanish man who left shorly after his arrival. He testified that this was what he was snorting when the police arrived and that at no time did he touch the bag on the bed.
On appeal appellant contends that the evidence was insufficient to sustain the verdict. When analysing the sufficiency of the evidence a two-step analysis is required. First, the evidence must be regarded in the light most favorable to the Commonwealth as the verdict winner, accepting as
[ 308 Pa. Super. Page 434]
true all evidence on which the fact finder could properly have based its verdict. Next, inquiry must be made to determine whether that evidence, together with all reasonable inferences was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980); Commonwealth v. Jones, 291 Pa. ...