*1 the crime of connection with for . . defendant’s] . [the buying.” any connection with selling than rather nothing to show here, However, there, “[t]here any way associated defendant] [the enterprise majority states of the seller . . . .” The his female including group defendant, entire “[t]he agents pro- child, Shiner, two friend, her They proceeded, how- . . .” residence . ceeded Shiner’s along, agents’ car; and ever, in the since Shiner residence; there way presumably to his he led along, go more than nothing suggest that my judgment, her female child. as did friend and “collaboration,” or “partnership,” or this is not charge “association,” sustain a shown to that must be accessory fact. before the defendant acted as an opinion. joins in Cercone, J., this Appellant. Molina, J., Argued Watkins, September Before P. Price, Voort, Jacobs, Hoffman, Cercone, Van der Spaeth, JJ. *2 Maltby, Defender,
Lewis Assistant with him John W. Packet, Defender, Zicoardi, Assistant and Vincent J. Defender, appellant. for Sendrow, Attorney,
Mark Assistant with him District Larry Goldblatt, Feldman H. and Steven Assistant D. Deputy District Attorneys, Gafni, Abraham J. District Attorney, Sprague, A. Richard First Assistant District Attorney, Attorney, Fitzpatrick, and F. Emmett District Commonwealth, appellee.
Opinion Watkins, by J., P. October 1975: appeal This is an from the of of sentence County, Philadelphia the Court of Common Pleas of Division, by defendant-appellant, Criminal the Adalberta Molina. presented testimony
The Commonwealth from Officer Martinez, police May 23, Philadelphia officer, that on p.m. having candy 1973 at about while 1:15 store under surveillance, doorway the observed defendant at the pass glazed person. packet store another The to packet apprehended man who received two blocks away by glazed Martinez who recovered immediately packet. The defendant was arrested. grams packet The seized found to contain 7.2 reducing sugar fit the mixture of heroin which category of heroin as a controlled substance. The defend- jury. Judge without a The ant was tried before Smith Szelangowski, Henry who presented defense purchase. test- make the He was the man officer saw give packet. The him the ified that the did not testified the officer in who called rebuttal to him ac- the defendant described curately the time. the rebuttal evidence
The defendant contends evidence to was used the court below as substantial opinion its held that The court below in convict. only impeach the witness’s used to rebuttal credibility and said: crime, be ‘the test to
“As the above mentioned evidence, sufficiency determining applied in evidence, accepting be it true all of is whether both, all reasonable or circumstantial or direct believed, arising therefrom, upon if which inferences verdict, it is properly its have based doubt prove sufficient law *3 he guilty of which of the crime the accused is Pitts, Pa. been has convicted.’ bar, decided issue “In the this Court credibility the Commonwealth. in favor of drug eyewitness, who saw “The was an Officer place.” by the defendant take transaction caution, below, an excess of court It true that the is agents the witness to take the narcotics direct he Szelangowski pictures to determine whether to see purchased the identify “Pop” testified he he could report with the packet then filed a from. The officers exhibit as an in the record was introduced court which “Pop” identify and then Szelangowski unable he agreed failed. a lie detector test which to take proba- placed on conviction, the defendant was After prior record. he had no tion as is affirmed. Judgment the court below of sentence of Dissenting Opinion by Spaeth, J.: In view the judge applied trial improper an standard determining guilt case, and I there- fore dissent.1
Appellant was tried without a and was found guilty delivery of a controlled substance.2 evidence The produced at trial was as follows. Officer Martinez testified that he appellant observed glazed paper packet hand a a man Szelangowski. later identified as The officer delivery witnessed the twenty-seven while in his car some away. Szelangowski feet He arrested a few blocks down the street delivery and then returned to the scene of the appellant. Szelangowski arrested A search of un- packet covered approximately containing 1%," %" Appellant heroin. testified that he never had been with Szelangowski day arrest; Szelangowski on the of the testified3 appel- had not received heroin from “Pop”. lant but from a man named rebuttal, Szelangowski being arrested, Martinez testified that after given heroin, described the man had who closing argu- description perfectly. fit After ments, judge appellant guilty, found but im- mediately doing so, take requested after the officer to police to see if he to the station identify person given him the heroin. The who had suggested requested post-trial motions issues, Appellant
1. two other but shall not dis- has raised infra, the one sufficient for cuss since I believe discussed them reversal. effective, 64, §13, April 14, imd. Act of P.L. No. *4 1048, 263, effective, §1, imd.
as amended October P.L. No. (a) P.S. §780-113 Szelangowski testify willing to because had been convicted at an earlier trial. if Szelan- nobis of coram writ file a counsel
that defense positive identification.4 gowski made a charge, guilty of a criminal person find a to In order all he committed show prosecution must record reads: 4. The this case. stand in Have the “THE COURT: 1973, charging Sessions, 353, July Molina, Number on Bill Mr. you substance, finds the Court you delivering a controlled with guilty. determining guilt or innocence Now, in the Court’s standards certainty. degree of not to a beyond It is doubt.
is absolutely just a doubt don’t have such sure. I have to be I don’t guilty. find the defendant not in mind to Maltby, your attorney, definition well the Mr. knows I am sure means. of what reasonable doubt however, case, going am to is I am do IWhat going to file written motions the Defender’s Association to ask judgment, and the interim I want in in new trial arrest any representative unit to take from narcotic Martinez and pic- unit down to the narcotics and show Mr. identify person by the name of let him if he can a tures and see Pop. you, am convinced reasonable
As I indicated I person who conducted the transaction. doubt that this man was the analyzed testimony great scrutiny great care be- your excellent cross-exam- cause of some the facts in inconsistency indicating possible testi- ination of the officer in his hearing. mony hearing preliminary at this However, inconsistency I did not believe that was of such me, sitting jury, nature as would cause as a to have reasonable doubt in this case.
So, my decision, now, guilty. asking is the defendant I’m judg- Defender’s file written Association to motions in arrest of ment, asking motion for new take the trial. I’m the officer unit, witness to the review of narcotic narcotics with him sellers, brought by that could results of be back me unit, officer or and also the information should be narcotics Maltby. passed argument toon Mr. the time of on the motion At arrest and for new tidal I will hear that informa- tion. could, nobis,
The Court on a writ of coram hear on trial, additional evidence that available at wasn’t the time of
603
beyond
elements of the crime
a reasonable doubt. Proof
beyond a reasonable doubt is
indispensable ingredient
an
process
of due
in a criminal
In Winship,
case.5
re
397
(1970) ;
U.S. 358
United
Johnson,
States v.
433 F.2d
(D.C.
1970);
1160
Cir.
Blevins,
Commonwealth
Pa.
v.
453
481,
(1973)
309 A.2d
;
Simmons,
421
Commonwealth v.
Superior
233
547,
Pa.
(1975).
Ct.
336 A.2d
Although
624
single
a
comprehensive definition of reasonable doubt has
satisfactorily
never been
formulated,6 it is clear that the
evidence at a criminal
trial must do more
than raise
suspicion
guilt,
and that conviction cannot be based
upon evidence consistent
guilt.
with both innocence and
Ortiz,
United
(10th
States v.
1971),
F.2d
445
1100
Cir.
cert. denied,
5. “Lest there remain doubt about the constitutional stature standard, explicitly of the reasonable doubt we hold that protects against the Due Process Clause accused conviction except proof upon beyond every a reasonable doubt of fact neces- sary to charged.” constitute the crime with which he is In re Winship, supra at 364. Wigmore, (3d 1940); McCormick, 6. 9 J. Evidence 325 ed. D. (2d 1972). Evidence 799 ed. importance great to himself acting in a matter
from herself”). or notes, the present case,
In the
say
he was “convinced
However,
his other
show
doubt.”7
statements
defining
statement,
“reasonable
making
he was not
this
required.
as the
doubt”
cases have
Oglesby,
263 A.2d
438 Pa.
*6
carrying
charged
(1970),
with
was
the defendant
in his
deadly weapon.
he had
arrested
concealed
When
folding
straight
with a
possession
yellow-handled
razor
long.
that he was a barber
He testified
blade six inches
injured him-
going
who had
to shave a customer
shop. This
come to
barber
and was unable to
self
the defend-
testimony
have
that
if
would
shown
believed
charged
guilty
the statute
the offense
since
ant
was not
. .
required
weapon
the intent
.
to be carried “with
any
person.”
at
unlawfully
injury to
other
...
to do
Id.
sitting
without
The trial
the trier of
fact was convinced
the admissible evidence
appellant
guilty
a reasonable doubt.
Accordingly, appellant must be awarded a new trial so
proper
determining guilt
standard for
will be
applied.”
Id.
94,
As in Oglesby, judge present the trial in the rendered a judgment: asking conditional “I’m officer take the unit, witness to narcotics review sellers, narcotic of that results brought could be argument back to me At the time of ... on the motion in arrest and for a new trial I will hear that could, information. The court on a writ nobis, of coram hear on additional evidence and, that wasn’t trial, available at the time of . . . ... could hear additional and rethink decision interim, this case. In the the defendant com- stands Therefore, just Supreme mitted.” as the Court did in Oglesby, we should find here have guilty, reasonable doubt when found and remand for a new trial. JJ., join opinion. Cercone,
Hoffman *7 Caplan, Appellant, Commonwealth ex rel. Caplan.