NO. 255 HARRISBURG 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, at No. 1753 C.D. 1980.
Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.
Katherene E. Holtzinger, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Del Sole, Popovich and Roberts, JJ.
[ 334 Pa. Super. Page 200]
Appellant was convicted, after a jury trial, of possession with intent to deliver heroin. Post-trial motions were filed and denied. Appellant was sentenced to two and one-half to five years imprisonment. This appeal followed.
Eight issues are raised on appeal: 1) Was trial counsel ineffective in failing to object to dismissal of the deadlocked first jury and in failing to file a Motion to Dismiss before Appellant's retrial on the grounds of double jeopardy?; 2) Was trial counsel ineffective in failing to file a Motion to Suppress before Appellant's second trial?; 3) Did the court err in permitting evidence of prior criminal activity?; 4) Was trial counsel ineffective in failing to adequately cross-examine the police officers?; 5) Was the evidence insufficient to sustain the verdict?; 6) Was trial counsel ineffective in failing to properly question Appellant's wife?; 7) Did the court err in instructing the jury concerning the marked twenty dollar bill found in Appellant's possession?; and 8) Was trial counsel ineffective in failing to preserve for appeal the issue of court error in permitting the search warrant to go to the jury as evidence?
Because we have concluded that Appellant's argument concerning sufficiency of the evidence has merit, we do not need to address the other issues raised in this appeal.
In reviewing the sufficiency of the evidence to support a conviction, we must view that evidence in the light most
[ 334 Pa. Super. Page 201]
favorable to the Commonwealth. Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979).
The following evidence was presented at trial. A confidential police informant made a controlled buy of heroin in room 21 of the Econo Motel in Harrisburg. Police recorded the serial numbers of the money used to make the purchase. Room 21 was registered to Appellant and his wife. Based on information from the informant, police obtained a search warrant for the motel room. The warrant was executed approximately twelve hours after the controlled buy. Appellant, his wife and his teenage stepdaughter were present in Room 21 at the time. In the bathroom, under the plastic trash can liner, a syringe and bottle cap were found. A laundry bag by one of the beds contained a pair of women's blue jeans. Inside the pocket of the jeans, wrapped in a three year old rent receipt made out to Appellant's wife, was 680 milligrams, or approximately 7 dosages, of heroin. Police also seized $70.00 in currency from the pocket of Appellant's pants, which were lying over a chair. One of the bills contained the same serial number as one of the bills used in the previous controlled buy. All three occupants denied any knowledge of the drugs and denied that they were heroin users, although Appellant's wife was a former heroin addict and was undergoing methodone treatment at the time of the arrest. Appellant's wife and stepdaughter both testified that the blue jeans belonged to a friend of the daughter.
We hold that the above-recited evidence was not sufficient to prove, beyond a reasonable doubt, Appellant's ...