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COMMONWEALTH PENNSYLVANIA v. BRUCE ASBURY (01/13/83)

submitted: January 13, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
BRUCE ASBURY, APPELLANT



No. 243 Pittsburgh, 1982, Appeal from the Judgment of Sentence of December 29, 1981 In the Court of Common Pleas of Erie County, Criminal Division, No. 272 of 1981.

COUNSEL

Terrence P. Cavanaugh, Erie, for appellant.

James R. Dailey, Erie, for Commonwealth, appellee.

Cercone, President Judge, and Popovich and Van der Voort, JJ.

Author: Cercone

[ 312 Pa. Super. Page 359]

Appellant, Bruce Asbury takes this direct appeal from the judgment of sentence imposed by the Court of Common Pleas of Erie County on December 29, 1981 following his conviction by a jury of three (3) counts of possession of a controlled substance*fn1 and three (3) counts of possession with intent to deliver a controlled substance.*fn2 Appellant now asserts that the Commonwealth failed to adduce sufficient evidence to prove that he possessed the Schedule IV drugs,*fn3 Prazepam and Chlordiacepoxide, with the intent to deliver them to another party. We agree.

The facts and procedural history relevant to the case sub judice are as follows: On January 7, 1981, two inmates housed in Cell Number Seven, in a section of the Erie County Prison known as the B Range, were taken to a local hospital for treatment of illnesses which were subsequently diagnosed as drug overdoses. Endeavoring to arrest the use of illicit drugs by inmates, prison officials ordered guards to conduct a cell-by-cell search of the B Range and its occupants for contraband. During the course of this investigatory "shakedown," Officers Ken Brown and David Kelly inspected Cell Number Six which was occupied by appellant and his cellmate, Charles Toliver. Discovering no contraband in the cell itself, the guards then subjected appellant and Toliver to a strip search. An inspection of appellant's clothing yielded a small tobacco tin secreted in

[ 312 Pa. Super. Page 360]

    the heel of appellant's left tennis shoe which he was wearing immediately prior to the search. The tin contained one hundred seven (107) pills, three of which were conspicuously labelled as aspirin. Analysis performed on the remaining pills by the Pennsylvania State Police Crimes Laboratory established that thirty-two (32) of the seized tablets constituted controlled substances under Schedule IV of the Act.

As a consequence of the discovery of these prohibited substances in appellant's shoe, appellant was charged by information with: (1) possession with intent to deliver one (1) capsule of Flurazepam; (2) possession with intent to deliver seventeen (17) capsules of Chlordiacepoxide; (3) possession with intent to deliver fourteen (14) capsules of Prazepam; (4) possession of Flurazepam; (5) possession of Chlordiacepoxide; and (6) possession of Prazepam. Appellant proceeded to a trial by jury on May 20, 1981 and, on that same afternoon, was found guilty of all charges.

Appellant's post-verdict motions were filed on May 28, 1981. Following oral argument on these motions, the lower court issued an order, dated December 3, 1981, arresting judgment with respect to appellant's conviction under Count One of the information for possession with intent to deliver one capsule of Flurazepam, but denying the requested relief as to Counts Two through Six.

On December 29, 1981, appellant was sentenced to concurrent terms of one and one-half (1 1/2) to three (3) years incarceration for his convictions under Counts Two and Three of possession with intent to deliver Chlordiacepoxide and Prazepam. For his remaining convictions of simple possession of Flurazepam, Chlordiacepoxide, and Prazepam under Counts Four through Six, he was sentenced to three terms of imprisonment, each of a duration of six (6) to twelve (12) months, and each to be served concurrently to those sentences prescribed under ...


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