Commonwealth v. Molina

346 A.2d 351, 236 Pa. Super. 598, 1975 Pa. Super. LEXIS 1738

• Court: Superior Court of Pennsylvania
• Decided: October 28, 1975
• Docket: Appeal, 893
• Status: Published

Opinions

Opinion by

Watkins, P. J.,

This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, by the defendant-appellant, Adalberta Molina.

The Commonwealth presented testimony from Officer Martinez, a Philadelphia police officer, that on May 23, 1973 at about 1:15 p.m. while having a candy store under surveillance, he observed the defendant at the doorway of the store pass a glazed packet to another person. The man who received the packet was apprehended two blocks away by Officer Martinez who recovered the glazed packet. The defendant was immediately arrested.

The packet seized was found to contain 7.2 grams of a mixture of heroin and reducing sugar which fit the category of heroin as a controlled substance. The defendant was tried before Judge Smith without a jury. The defense presented testimony of Henry Szelangowski, who was the man the officer saw make the purchase. He testified that the defendant did not give him the packet. The Commonwealth called the officer in rebuttal who testified that Szelangowski described the defendant to him accurately at the time.

The defendant contends that the rebuttal evidence was used by the court below as substantial evidence to convict. The court below in its opinion held that the rebuttal testimony was only used to impeach the witness’s credibility and said:

“As to the above mentioned crime, ‘the test to be applied in determining the sufficiency of the evidence, is whether accepting 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, it is sufficient in law to prove beyond a reasonable doubt that the accused is guilty of the crime of which he has been convicted.’ Commonwealth v. Pitts, 450 Pa. 359 (1973).

“In the case at bar, this Court decided the issue of credibility in favor of the Commonwealth.

“The Officer was an eyewitness, who saw the drug transaction by the defendant take place.”

It is true that the court below, in an excess of caution, did direct the narcotics agents to take the witness Szelangowski to see pictures to determine whether he could identify the “Pop” he testified he purchased the packet from. The officers then filed a report with the court which was introduced in the record as an exhibit that Szelangowski was unable to identify “Pop” and then agreed to take a lie detector test which he failed.

After conviction, the defendant was placed on probation as he had no prior record.

Judgment of sentence of the court below is affirmed.