Com. v. Bozzi

• Decision Date: 21 July 1955
• Citation: 178 Pa.Super. 224,116 A.2d 290
• Parties: COMMONWEALTH of Pennsylvania v. James F. BOZZI, Appellant.
• Court: Pennsylvania Superior Court

Page 290

116 A.2d 290

178 Pa.Super. 224

COMMONWEALTH of Pennsylvania v. James F. BOZZI, Appellant.

Superior Court of Pennsylvania.

July 21, 1955.

Application for Allocatur Denied Oct. 3, 1955.

D. J. Goldberg, Garfield W. Levy, Philadelphia, for appellant.

Victor Wright, Jr., Asst. Dist. Atty., Samuel Dash, Acting Dist. Atty., Philadelphia, for appellee.

Before RHODES, P. J., and ROSS, GUNTHER, WRIGHT, WOODSIDE and ERVIN, JJ.

WRIGHT, Judge.

James F. Bozzi was arrested on April 15, 1954, by officers of the Narcotics Squad of the Police Department of the City of Philadelphia, and charged with the unlawful possession of narcotic drugs. In Bozzi's bedroom the officers discovered a small coin machine, for which Bozzi produced the key, containing eight packages of white powder, eighty capsules filled with white powder, and two boxes of empty capsules. Bozzi admitted that 'it was his stuff'. Chemical analysis revealed that the powder contained a mixture of milk sugar and heroin hydrochloride, an opium derivative. The concentration of heroin was over one-eighth of a grain per ounce, the total amount (roughly six ounces) representing a comparatively large seizure. On April 16, 1954, after a preliminary hearing, Bozzi was held for appearance at the next term of Court. On April 23, 1954, he was indicted by the April Grand Jury on bill No. 970, charging unlawful and felonious possession of drugs with an additional averment of previous conviction. On May 14, 1954, a motion to quash was filed on the ground that the indictment was returned at an improper term. On June 2, 1954, by amendment, an allegation was added to said motion that it had been impossible for Bozzi to challenge the array and that, if he 'were permitted an opportunity, he would file a challenge to the array of the Grand Jury which is to indict him on the ground that the selection of said jurors discriminates against the segment of the population of Philadelphia, to wit: citizens from the first fifteen wards, in one of which the defendant resides'. On June 9, 1954, the motion to quash was overruled by Judge Alessandroni. After a trial before Judge Davis on August 17, 18, and 19, 1954, the jury returned a verdict of guilty. On October 20, 1954, Bozzi was sentenced to pay a fine of $2,000, and to serve not less than five years nor more than ten years in the Philadelphia County Prison. This appeal followed.

Appellant first contends that the lower Court erred in not quashing the indictment. At the trial, in renewing the motion to quash, appellant's counsel stated his objection to be 'that the Grand Jury, and nearly all of the Petit jurors that sit in the Courts in Philadelphia County, are comprised of jurors not from the first fourteen wards of the City of Philadelphia. Since this defendant is a resident of one of these wards, we desire the right to examine the Jury Commissioners as to the method of selecting jurors and why there should be what seems to be more than a coincidence'. As stated in the brief for appellee, appellant was merely seeking 'a license to go on a fishing expedition'. We approve the following language from judge Alessandroni's opinion: 'The provisions of the Act of May 10, 1949, P.L. 1066, 17 P.S. § 1251 (establishing a mode of selecting and drawing jurors for counties of the first class), afford no such right to a defendant. In the absence of a showing that the Grand Jury was not chosen in conformity with the provisions of the Act, the motion must fail * * * The contention that a defendant is prejudiced when a grand or petit jury list fails to disclose the name of a juror residing in his neighborhood, or a wider area of the city in which defendant resides, is untenable on its face'.

In our view, the situation in the case at bar is controlled by the decision of this Court in Commonwealth v. Magid and Dickstein, 91 Pa.Super. 513. There the defendants were given a hearing on February 19, 1927, and were held for the pending term of Court. The indictment was returned on February 21, 1927. There was a motion to quash on the ground that the return should have been made to the next term rather than to the term of Court then in session. In the words of Judge (later President Judge) Keller: The appellants' contention that the action complained of deprived them of their right to challenge the array of the grand jury is without merit. They do not aver that any ground existed for such a challenge, but only that if such ground had existed, they could not have availed themselves of it. This is no reason at all for setting aside the conviction. But it is untenable for the reason that if grounds for such challenge had existed, they would have been considered on motion to quash if made at the first opportunity after indictment'. Appellant could have challenged the array at any time before entering his plea: Commonwealth v. Gross, 161 Pa.Super. 613, 56 A.2d 303. And see Commonwealth v. Weiner, 101 Pa.Super. 295.

Appellant next contends that the charge of the trial Judge 'failed to define the offense contained in the bill of indictment, to wit, the unlawful and felonious possession of drugs'. His position is that, since the word 'drugs' is defined by the statute, the trial Judge should have defined the word 'possession'. We are here concerned with the Act of July 11, 1917, P.L. 758, as amended, 35 P.S. § 851 et seq. Section 1 of said Act defines the word 'drug' to include, inter alia, any preparation containing a derivative of opium. Section 2, 35 P.S. § 852, sets forth that the word 'drug' shall not be construed to include, inter alia, a preparation which does not contain more than one-eighth of a grain of heroin. Section 4, 35 P.S. § 854, provides that no person shall have any of said drugs in his possession or under his control. The trial Judge stated to the jury that appellant was charged with illegal possession of drugs, and thoroughly reviewed the evidence of the Commonwealth as it related to the charge. The word 'possession' has a common meaning which is generally understood. Commonwealth v. Weatherwax, 166 Pa.Super. 586, 73 A.2d 427, cited by appellant, is not pertinent. In that case the defendants were charged with five separate types of assault. We held that it was the duty of the trial Judge under the circumstances to define the various offenses. And see Commonwealth v. Tracey, 137 Pa.Super. 221, 8 A.2d 622. Our review of the charge in the case at bar reveals that the trial Judge fully covered the essentials of the single offense with...