Summary
In Commonwealth v. Schulhoff, 218 Pa. Super. 209, 275 A.2d 835 (1971), police raided an apartment and found drugs in the living room couch.
Summary of this case from Commonwealth v. WalleyOpinion
September 17, 1970.
March 23, 1971.
Criminal Law — Evidence — Sufficiency — Possession of marijuana and hashish.
1. On appeal by defendant following conviction of possession of marijuana and hashish, in which it appeared that the drugs were found by police in a couch situated in the living room of an apartment; that the apartment was rented by defendant and another, who was also indicted for possession of narcotics; and that at the time of execution of the search warrant, the police found four persons, including defendant and his co-lessee, asleep in the apartment, but none of them were found in the living room where the narcotics were discovered in the search by the police; it was Held that the evidence was insufficient to sustain defendant's conviction.
2. Commonwealth v. Tirpak, 441 Pa. 534, held controlling.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
Appeal, No. 753, Oct. T., 1970, from judgment of Court of Common Pleas of Lancaster County, Nov. T., 1969, No. 292a, in case of Commonwealth of Pennsylvania v. William K. Schulhoff. Judgment reversed.
Indictments charging defendant with illegal possession of dangerous and narcotic drugs. Before BROWN, J.
Verdict of guilty of possession of narcotic drugs and judgment of sentence entered thereon. Defendant appealed.
William A. Atlee, Jr., with him John O. Shirk, Geisenberger, Zimmerman, Pfannebecker Gibbel, and Barley, Snyder, Cooper Mueller, for appellant.
D. Richard Eckman, Assistant District Attorney, with him Clarence C. Newcomer, District Attorney, for Commonwealth, appellee.
WRIGHT, P.J., would affirm on the opinion of BROWN, J.
Argued: September 17, 1970.
The appellant, William K. Schulhoff, was tried before a jury and convicted on June 30, 1969, of the crime of possession of marijuana and hashish, and on this appeal he has raised, inter alia, the question of the sufficiency of the evidence to sustain his conviction.
The evidence presented by the Commonwealth was entirely circumstantial. The drugs were found on the early morning of January 18, 1969, by the Pennsylvania State Police in a couch situated in the living room of a second floor apartment in Lancaster. The apartment was rented by appellant and Bernard G. Beck, Jr., who was also indicted for possession of narcotics. Entry by the police was obtained as a result of a search warrant, the legality of which appellant also questions on this appeal. At the time of execution of the search warrant, the police found four persons, including appellant and Beck, asleep in the apartment, but none of them were found in the living room where the narcotics were discovered in the search.
It is our conclusion that the Commonwealth has presented insufficient evidence to sustain appellant's conviction. On the sufficiency of the evidence, the decision of our Supreme Court in the recently decided case of Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971), is controlling.
Since the defendant must be discharged on the basis of the above discussion, we will not review the other questions presented by him.
Judgment reversed and appellant discharged.
WRIGHT, P.J., would affirm on the opinion of BROWN, J.