No. 741 Philadelphia 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas of Luzerne County, Criminal, at No. 264 of 1982.
Joseph J. Yeager, Wilkes-Barre, for appellant.
Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Montemuro, Cercone and Hester, JJ. Cercone, J., concurred in the result.
[ 329 Pa. Super. Page 198]
This is an appeal from the judgment of sentence. The appellant, Richard Mills, was found guilty after a jury trial of criminal attempt*fn1 and criminal conspiracy.*fn2 Both charges arose out of an incident wherein appellant and his co-defendant, William J. Gola, allegedly made efforts to procure a controlled substance (methamphetamine) for an undercover agent from the Bureau of Narcotics Investigation. Boilerplate post-verdict motions were filed by the appellant but denied by the trial court. On February 24, 1983, the trial court imposed a sentence of five (5) years special probation. The probation sentence is to be served consecutively to a term of imprisonment currently being served by the appellant on an unrelated charge. This timely appeal followed.
The appellant contends on appeal that the evidence was insufficient to sustain his convictions, and that for a variety of reasons trial counsel was ineffective. Because we agree that the evidence was insufficient, we need not consider the claims of ineffectiveness.
In evaluating the sufficiency of the evidence, we are guided by the oft-stated standard set forth in Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982):
The test for sufficiency of the evidence is whether accepting as true all of the evidence reviewed in the light most favorable to the Commonwealth, together with all reasonable inferences therefrom, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.
Id, 498 Pa. at 669, 450 A.2d at 977. Viewed in light of this
[ 329 Pa. Super. Page 199]
standard, the following evidence was adduced at trial.*fn3 On December 24, 1981, Joseph H. Byerly, an undercover agent for the Bureau of Narcotics Investigation, went to the Wilkes-Barre apartment of one of his informants, Gene Kline. Byerly and Kline then proceeded to the apartment of William Gola, a high school acquaintance of Kline.
When Byerly and Kline arrived at Gola's apartment only a female identified as Tracy was present. Shortly thereafter, Gola and one George Thomas arrived at the apartment. Kline introduced Byerly, and inquired if he and Byerly could obtain some methamphetamine. Gola and Tracy had a conversation as to where the drug might be obtained. "They arrived at the name of Karl." (N.T. June 2, 1981, at ...