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COMMONWEALTH PENNSYLVANIA v. CHARLES DERR (07/05/83)

decided: July 5, 1983.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
CHARLES DERR, APPELLANT



No. 81-3-386, Appeal from the Superior Court of Pennsylvania, No. 563 October Term 1979 - Order of Lower Court affirmed, Appeal from the Order dated February 13, 1979, in the Court of Common Pleas of Montour County, at No. 186 of 1977, Criminal Division, Hon. Jay W. Myers, presiding.

COUNSEL

Alan Ellis, Philadelphia, for appellant.

George O. Wagner, Dist. Atty., for appellee.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, J., filed a dissenting opinion in which McDermott and Hutchinson, JJ., join.

Author: Zappala

[ 501 Pa. Page 448]

OPINION

The sole issue before this Court is whether there is sufficient evidence to sustain the Appellant's conviction for criminal conspiracy. The facts pertinent thereto are as follows.

On March 11, 1977, the Appellant agreed to sell to an undercover narcotics agent of the Department of Justice, Bureau of Drug Control, one pound of hashish for the sum of $1,100.00. The Appellant also indicated to the undercover agent that the actual purchase would occur at another location, later identified as the residence of Eugene Szoka. Upon arrival at the Szoka residence, the Appellant instructed the undercover agent to give him the money and remain in the car while the Appellant entered the house to purchase the hashish. Shortly after entering the house, the Appellant returned with the hashish, which the Appellant gave to the undercover agent. Thereafter, the Appellant and the undercover agent parted.

The Appellant was arrested for and charged with violation of the Controlled Substance, Drug, Device and Cosmetic Act,*fn1 and criminal conspiracy.*fn2 Having waived his right to trial by jury this matter was set for non-jury disposition on December 17, 1977. Prior to the commencement of the trial, the Appellant attempted to withdraw his waiver, which was denied. After hearing all the evidence, the trial judge found the Appellant guilty of violating the Controlled Substance, Drug, Device and Cosmetic Act and criminal conspiracy.

Because the lower court acted improperly in denying the Appellant's request to withdraw his waiver of his jury trial,*fn3

[ 501 Pa. Page 449]

    the lower court granted the Appellant a new trial, and implicitly denied the Appellant's Motion to Arrest Judgment.*fn4 We thereafter granted review of the Superior Court's ...


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