Appeal from the Orders of the Court of Common Pleas, Criminal Division, of Erie County at Nos. 1521 & 1651 of 1983.
Ernest J. DiSantis, Jr., Assistant District Attorney, Erie, for Commonwealth, appellant.
John H. Moore, Erie, for appellee.
Cirillo, President Judge, and Rowley and Popovich, JJ. Rowley, J., concurs in the result.
[ 360 Pa. Super. Page 580]
This is an appeal by the Commonwealth from the orders*fn1 of the Court of Common Pleas of Erie County granting the motion in arrest of judgment (at Nos. 1521 and 1651 of 1983) of the defendant/appellee, Daniel L. Lanager. We reverse.
The standard of review in such a case has been re-stated by this Court in Commonwealth v. Robinson, 351 Pa. Super. 309, 311-12, 505 A.2d 997, 998 (1986); viz.:
In reviewing an appeal from a trial court's granting of motion in arrest of judgment, we must determine whether the evidence offered by the Commonwealth was legally
[ 360 Pa. Super. Page 581]
sufficient to support the verdict. Commonwealth v. Froelich, 458 Pa. 104, 326 A.2d 364 (1974). To reach this determination, we accept all of the evidence and all reasonable inferences therefrom, upon which the fact-finder could have based the verdict; we can affirm the granting of a motion in arrest of judgment if, viewed in that manner, the evidence was nonetheless insufficient in law to find guilt beyond a reasonable doubt as to the crimes charged. Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973). We must view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Hazlett, 429 Pa. 476, 240 A.2d 555 (1968). Our task is the same whether the finder of fact was a jury or a judge sitting without a jury. Commonwealth v. Meadows, 232 Pa. Super. 292, 331 A.2d 827 (1974) [, aff'd 471 Pa. 201, 369 A.2d 1266 (1977)].
For ease of presentment, and with the preceding in mind, the facts underlying each of the two Informations will be discussed separately.
At 3:30 p.m. on the 3rd of February, 1983, undercover narcotic Agents Shoup and Mohn were introduced to the defendant by a confidential informant (Marla). A discussion ensued in which the defendant was asked whether he could obtain some "sets", which is street jargon for two Tylenol No. IV tablets and one Doriden tablet. The defendant stated he could obtain them and to follow him and Marla into Erie.
With Marla driving, the defendant stopped in front of the "Good Cook's Bar and Restaurant". The agents parked directly behind the defendant. As the agents sat in their vehicle, they could see as the defendant hailed a black male, later identified as Hardy Ray "Skeeter" Gowdy, and the two engaged in a conversation through the window on the passenger side where the defendant was seated. Gowdy entered the vehicle and sat directly behind the defendant. Then, the first vehicle pulled forward another one hundred
[ 360 Pa. Super. Page 582]
feet with the agents following. Marla, thereafter, got out of the driver's side, walked back to the agents and asked for thirty dollars to purchase some drugs. Agent Shoup complied and Marla returned to the lead vehicle.
By this time, Gowdy had exited Marla's vehicle and was standing along the passenger side. Both agents testified to seeing Gowdy pull a plastic pill bottle from his jacket pocket. The bottle was opened and a quantity of white tablets were emptied by Gowdy into his own hand. These pills were observed being given to the defendant through the open passenger window.
The first bottle was closed and returned by Gowdy to his pocket. He then produced a second bottle of pills from his pocket, emptied a portion of its contents (white pills) into his hand and again handed them to the defendant through the open window. After Gowdy walked away, Agent Shoup walked to the driver's side of Marla's vehicle and observed a number of white tablets in the defendant's left hand. ...