No. 2784 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Delaware County at No. 1406-81.
Eugene A. Bonner, Media, for appellant.
Helen T. Kane, Assistant District Attorney, Media, for Commonwealth, appellee.
Cavanaugh, Rowley and Watkins, JJ. Rowley, J., concurs in result.
Appellant, Juan Pagan, was convicted by the Honorable Clement J. McGovern, Jr., of possession of a controlled substance, 35 P.S. § 780-113(a)(16), and possession with intent to deliver a controlled substance, 35 P.S. § 780-113(a)(30). Following the denial of post-verdict motions, appellant was sentenced to pay a $500 fine for the former offense and to undergo imprisonment for two to twenty-three months for the latter. In this appeal, appellant raises several claims, all of which were considered and rejected below. For the following reasons, we affirm the judgment
of sentence for possession of a controlled substance and reverse the judgment of sentence for possession with intent to deliver a controlled substance.
Appellant's principal claim is that the evidence supporting his convictions was insufficient, contrary to the law and evidence and against the weight of the evidence. In deciding the sufficiency of evidence, we must accept as true all the evidence, and the reasonable inferences therefrom, upon which the factfinder could have based its verdict and then ask whether that evidence, viewed in a light most favorable to the Commonwealth as verdict winner, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Stasiak, 305 Pa. Super. 257, 263, 451 A.2d 520, 523 (1982); Commonwealth v. Banahasky, 250 Pa. Super. 495, 499, 378 A.2d 1257, 1259 (1977). We agree with the lower court's conclusion that the evidence supports appellant's conviction of possession of a controlled substance and feel that no further discussion is warranted.*fn1
However, we cannot agree with the court's determination that the evidence also justifies appellant's conviction of possession with intent to deliver a controlled substance. Only 19.9 grams of marijuana (less than one ounce) were discovered inside the searched premises, well below
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the quantity considered to constitute a "small amount." 35 P.S. § 780-113(a)(31).*fn2 An inference of intent to deliver may be drawn from a large quantity of controlled substances, Commonwealth v. Bowermaster, 297 Pa. Super. 444, 444 A.2d 115 (1982) (4.1 pounds of marijuana); Commonwealth v. Chamberlain, 277 Pa. Super. 503, 419 A.2d 1261 (1980) (over ten pounds of marijuana); Commonwealth v. Hunt, 256 Pa. Super. 140, 389 A.2d 640 (1978) (approximately one-half pound of marijuana); Commonwealth v. Harmes, 255 Pa. Super. 147, 386 A.2d 551 (1978) (seven pounds of marijuana); Commonwealth v. Kishbach, 247 Pa. Super. 557, 373 A.2d 118 (1976) (one-quarter pound of marijuana, ten "hits" of morphine and one hundred "hits" of acid). Similarly, the absence of an intent to deliver may be inferred where, as here, only a small amount of a controlled substance has been discovered. We note that the Commonwealth failed to present any evidence that possession of 19.9 grams of marijuana would be a quantity consistent with delivery for sale. See Commonwealth v. Asbury, 312 Pa. Super. 357, 458 A.2d 999 (1983) (insufficient evidence of possession with intent to deliver: 31 pills of prazepam and ...