*1 waived infer that Cafaro Sears from which a trier could on or before the completed the sale be the requirement R. 9a-10a. closing date. of the lower court judgment the
I therefore believe that pro- remanded further and the case should be reversed ceedings. dissenting:
CERCONE, is law holds that time state of the I dissent. The present sale a contract for the action at law on of the essence in an unless the intent retain that standard of land. would case, I would contrary. parties clearly is 10, 1974 agreement the October language hold that This was corroborated made time of the essence. closing meet two prior had failed to fact the parties forfeiture on notice put appellants dates and had Based on was not met. closing if third date inevitable lower circumstances, entry I would affirm the these appellees. in favor of pleadings Pennsylvania COMMONWEALTH WALLACE, Appellant. George Superior Court of April Submitted *2 Dadowski, Louis R. Pittsburgh, appellant.
Stephanie Popivchak, P. Assistant District Attorney, Commonwealth, Pittsburgh, for appellee. HOFFMAN,
Before CER- CONE, PRICE, VOORT, HESTER, VAN der SPAETH and JJ.
PRICE, Judge: 10,1976, trial on December Following non-jury substance,1 was found of a guilty to-wit, heroin, and with intent to deliver a con- trolled substance.2 Post-trial motions for a new trial and in *3 denied, arrest of judgment were and appellant was sen- tenced to a imprisonment term of of from three to ten years on the of with charge possession intent to deliver a con- trolled suspended substance. Sentence was of charge possession of a controlled substance. Appellant contends the evidence presented at trial was insufficient to establish that he was a seller of the heroin. We disagree, and affirm the sentence.
The facts to our pertinent consideration of the instant 28, 1976, are as follows. September On at approxi- m., 10:50 mately p. plainclothes Officers James and Holliday Albert Stegena of the Pittsburgh Police re- Department, sponding informant, to a from a reliable tip set a surveil- up Avenue, lance post the 1700 Block of Center located in Hill Pittsburgh’s District. The Officers observed appellant at this location minutes, for a span thirty-five during time, appellant paced back and forth within a one block occasions, radius. On two different appellant was ap- proached two by different black males who exchanged arti- 13(a)(16), 1. Act of P.L. No. 35 § P.S. 780-113(a)(16). § Id., 13(a)(30), 780-113(a)(30). 35 P.S. § § 94 exchange, appel- the second him. after Shortly with
cles3 incident of appellant A search lant was arrested. foil pack- fourteen containing bag produced plastic arrest Depart- conducted by chemical analysis Subsequent ets. foil packet that each revealed Laboratory ment’s Crime containing of a substance measure a half-spoon contained heroin. at trial indicated
Expert testimony4 presented of sufficient appellant heroin found on quantity was in the business that appellant to indicate magnitude it for his own personal than retaining heroin rather selling use.5 earlier our this case to be
We find Harris, Pa.Super. decision in Harris was convicted of appellant The (1976). A.2d 407 deliver; in that to of heroin possession of sixteen was in possession case vantage point, Holliday he could that from his testified 3. Officer exchanged. being exactly what was see Detective expert testifying was Police for the Commonwealth 4. The member of the Barry of trial was a Fox at the time Fox. Detective Department Pittsburgh with two and Police Narcotics Section of a half experience years years experience and seven in that section having made numerous Department. Detective Fox testified a con- con- with intent to deliver arrests for trolled substance. He training schools had attended narcotics Dangerous Drugs, and he of Narcotics and ducted the then Bureau involving assigned to cases as a medic in the armed services served drugs patients. the effects of *4 contradictory opinion Appellant was so Fox’s 5. claims Detective response Detective Fox’s stems from worthless. This claim was conceivable that a it was that it heavy heroin could consume user of half-spoons within in the fourteen of heroin contained the amount possible.” drugs, anything’s days case of because “in the two or three However, testify were so that if someone went on to Detective Fox user, buy heavy foil-wrapped half-spoon present rather than individual bulk amounts a he would event, any any contradiction amounts. weight testimony to be affects the in of a witness testimony. it is the well settled that “The law is accorded that exclusive witnesses and the credibility pass upon province trier of fact to of the testimony. weight . . to be accorded their manifestly finding it is unless not disturb such a We will erroneous, Garvin, omitted).” (citations 448 Pa. v. Harris, of sentence in affirming court the lower court considered the detective’s police noted the amount in testimony appellant’s possession use, more than would be carried for his person personal the appellant and convicted on that basis. We held that we not find error on any part could manifest the lower Garvin, See Commonwealth v. under those circumstances. Harris, supra. As in we manifest court find no error below in detective’s according weight police testimony in finding appellant guilty deliver a controlled substance because he was in possession of fourteen
Judgment sentence affirmed.
SPAETH, J., files a dissenting statement. HOFFMAN, J., former President did participate the consideration or decision of this case.
SPAETH, Judge, dissenting: Harris, v. See Commonwealth 7, dissent. 241 Pa.Super. 13-17, 359 A.2d (1976) (HOFFMAN, 410-12 J. dissent- ing). Company, Appellant,
Marie DE FEO t/a Park Vallei Intyre, Robert MAC INTYRE and Oksanna Mac h/w. Superior Court
Argued June April 12, toto, (1972). Considering testimony 293 A.2d according we find that the lower court did not commit error weight opinion. to Detective Fox’s