Commonwealth v. Sterling

PRICE, Judge

(dissenting).

I dissent. The appellant was charged with three different violations of The Controlled Substance, Drug, Device and Cosmetic Act:1 possession of marijuana, possession of marijuana with intent to deliver and possession of hashish with intent to deliver. Trial by jury resulted in a conviction on the charges of possession of marijuana and possession of hashish with intent to deliver. Post-trial motions in arrest of judgment and for a new trial were heard and denied, and appellant was subsequently sentenced. This appeal attacks only the conviction of possession of hashish with intent to deliver. The appellant contends that the Commonwealth’s evidence was not sufficient to show knowing and deliberate control of or intent to distribute the drug involved. I disagree and would affirm the judgment of sentence below.

On May 21, 1973, United States Customs in New York City conducted a routine examination of a brown paper package. A customs agent, employing a canine specially trained to detect narcotics, determined that the package contained a controlled substance. The package, measuring 6 inches by 6 inches by 12 inches, was addressed from Mrs. Martha Cooper, 17 Hickory Street, Wellesley, *418Massachusetts 02181 to Mrs. Donald Farr, c/o Mr. and Mrs. James Sterling, R.D. 1, Lehoy Forest Drive, Leola, Pennsylvania. It had been sent from Amsterdam via air mail. After the package was opened and found to contain a pewter-type antique pitcher sealed with a yellow wax candle, a test boring was made through the paraffin and approximately two pounds of hashish was discovered inside.

The pitcher was subsequently re-packaged, placed in a shipping container sealed by rotary lock, and shipped via registered mail to Philadelphia. A customs official and a postal inspector in Philadelphia, as well as the Pennsylvania State Police in Lancaster, were informed of the imminent arrival of the package. Before attempting delivery of the package, the state police made another test boring, verified that the pitcher contained hashish, and sprinkled the pitcher with fluorescent powder. The postal inspector, working with the rural postal carrier, arranged for a controlled delivery to the appellant’s residence on June 7, 1973. Delivery was attempted, but the appellant was not at home and the package was returned to the Leola Post Office at 12:40 p. m. the same day. State Trooper Carl Harnish obtained a warrant to search the premises occupied by the appellant and his wife. The affidavit upon which the warrant was issued contained, in addition to the details mentioned above, averments that there was no existing Massachusetts address matching the return address on the package and that there was no knowledge that Mrs. Donald Farr, the addressee, lived at the appellant’s residence.

At approximately 3:30 p. m., surveillance of the appellant’s residence commenced. The postal inspector placed the package in the appellant’s outdoor mailbox, the door of which could not be closed due to the size of the package. At about 6:45 p. m. the appellant returned with his wife, stopped his car in the driveway, took the package as well as several envelopes from the mailbox, drove *419the car to the end of the driveway and, with his wife, entered the house.

After deliberately waiting some forty-five minutes, Trooper Harnish, at 7:26 p. m., served the search warrant on appellant, who was sitting on the porch. Several minutes after the search had begun appellant turned over the package, which had been lying unopened in a corner of the kitchen. The appellant told Trooper Har-nish that he had no knowledge of the contents, sender or addressee of the package. He did admit, however, that he had recently received a postcard from friends who were vacationing in Europe. The text of the card was “Hi y’all. Amsterdam hasn’t changed a bit. Lots of young people here. Can’t understand it. Keep your eye peeled for souvenirs, and we’ll be seeing [you] in a couple of weeks.” The card was signed “Gary and Jo.” After the package was recovered, Trooper Harnish asked the appellant if any other drugs were in the house. Appellant entered one of the bedrooms and returned with a plastic bag containing approximately ninety grams of marijuana. At this point, the officer explained that no further search was authorized under the warrant, and he asked appellant to consent to a search of his house and automobile. Appellant signed a consent form, and the subsequent search yielded numerous marijuana seeds, several pipes used for smoking marijuana, and some “roaches” (marijuana cigarette butts). Appellant admitted ownership of the above items, but stated that he had nothing to do with the hashish being mailed to his house. He indicated that the reason he had not opened the package “was because I thought I knew what was inside.”

At trial, the Commonwealth introduced the testimony of James Moss, a customs agent from Philadelphia, Clark C. Evans, a Philadelphia postal inspector, and Trooper Harnish. These three witnesses provided the previously-stated account of the events prior and subsequent to the *420delivery of the package. The Commonwealth also adduced testimony that the reasonable street value of the two pounds of hashish contained in the package was $8,-960.00. There is no dispute as to the facts involved in this appeal.

Appellant’s first allegation of error is that the Commonwealth did not meet its burden of proving, beyond a reasonable doubt, that the appellant had “conscious dominion” over the contraband involved herein, as required in Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974). When examining a claim of insufficient evidence to convict, this court must accept “as true all of the evidence, be it direct or circumstantial or both, and all reasonable inferences arising therefrom, upon which, if believed, the jury could properly have based its verdict . . . .” Commonwealth v. Williams, 443 Pa. 85, 87, 277 A.2d 781, 783 (1971). Given a guilty verdict, we must view the evidence in the light most favorable to the Commonwealth and accord it every reasonable inference arising therefrom. Commonwealth v. Shorter, 434 Pa. 160, 252 A.2d 679 (1969).

In the instant case, the appellant’s physical possession of the package containing hashish was established beyond dispute. He was observed removing the package from the mailbox and taking it into his house, where it was found. Evidence of appellant’s conscious dominion over the hashish was provided by the mysterious postcard, which included the portentous words “[k]eep your eye peeled for souvenirs . . . . ” Appellant admitted that “Gary and Jo” were his friends, and that Gary’s wife “lived in relatively the same area in Massachusetts” as his own wife. The return address on the package, interestingly, is likewise in Massachusetts. As previously stated, the return address was non-existent and the appellant disclaimed any knowledge of a “Mrs. Donald Farr.” Approximately ninety grams of marijuana, several pipes, usable in connection with either marijuana *421or hashish, marijuana seeds and “roaches” were found in appellant’s house and car. From these facts, the jury could have reasonably inferred that appellant received the hashish as the result of a pre-arranged transaction with the sender. The appellant’s possession and admitted use of marijuana, along with other marijuana and hashish connected paraphernalia, supports a reasonable inference that he was a regular user of such drugs involved in drug-related activity. The jury could reasonably doubt that one party would send hashish valued at approximately $8,960.00 to another party without a preexisting scheme or understanding. “While guilt may never rest on conjecture or surmise, a conviction may stand on circumstantial evidence. It is sufficient if the circumstances are consistent with criminal activity even though they might likewise be consistent with innocent behavior.” Commonwealth v. Moore, 226 Pa.Super. 32, 34, 311 A.2d 704, 705 (1973). Based on the instant facts and reasonable inferences therefrom, the jury properly found appellant to have been intentionally exerting dominion over the hashish, and thus guilty of the possession offense.

The appellant testified that he had no prior knowledge that the hashish would be sent to him and that there had been no plan or agreement concerning such a transfer. Although he admitted smoking marijuana, appellant denied ever having smoked or otherwise come into contact with hashish. He likewise denied having sold or otherwise distributed either drug at any time. Several witnesses for the appellant testified to his reputation as an honest and law-abiding citizen. “The law is well settled that it is the exclusive province of the trier of facts to pass upon the credibility of witnesses and the weight to be accorded their testimony. . . . We will not disturb such a finding on appeal unless it is manifestly erroneous.” Commonwealth v. Garvin, 448 Pa. 258, 269, 293 A.2d 33, 39 (1972). See also Commonwealth v. Mur*422ray, 460 Pa. 604, 334 A.2d 255 (1975); Commonwealth v. Hampton, 462 Pa. 334, 341 A.2d 101 (1975). In the present case, the jury clearly credited the Commonwealth’s evidence and disbelieved or gave less weight to the testimony of the appellant and his witnesses. I find no error in such a result.

Appellant’s second contention is that there was insufficient evidence to convict him of possession [of hashish] with intent to deliver. It has been held that, in controlled substance cases, the quantity and value of the narcotic drug involved is admissible as circumstantial evidence of the intent with which it was possessed, and may support an inference of intent to distribute, in contrast with mere possession for personal use. Commonwealth v. Santiago, 462 Pa. 228, 340 A.2d 440 (1975). In the instant case, the appellant was in possession of two pounds of hashish worth approximately $8,960.00. Appellant testified that at the time of this incident, he was a student with a limited income and few financial resources. A jury’s finding of intent to distribute on the part of appellant, under the aforementioned circumstances, is not manifestly erroneous or unreasonable. I would not disturb such a finding on appeal.

I would affirm the judgment of sentence.

VAN der VOORT, J., joins in this dissenting opinion.

. Act of April 14, 1972, P.L. 233, No. 64, § 1 (35 P.S. § 780-101) et seq.