Com. v. Lanager

• Decision Date: 11 February 1987
• Citation: 360 Pa.Super. 578,521 A.2d 53
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Daniel L. LANAGER.
• Court: Pennsylvania Superior Court

Page 53

521 A.2d 53

360 Pa.Super. 578

COMMONWEALTH of Pennsylvania, Appellant, v. Daniel L. LANAGER.

Superior Court of Pennsylvania.

Argued Dec. 2, 1986.

Filed Feb. 11, 1987.

Ernest J. DiSantis, Jr., Asst. Dist. Atty., Erie, for Commonwealth, appellant.

John H. Moore, Erie, for appellee.

Before CIRILLO, President Judge, and ROWLEY and POPOVICH, JJ.

POPOVICH, Judge:

This is an appeal by the Commonwealth from the orders ¹ of the Court of Common Pleas of Erie County granting the motion in arrest of judgment (at Nos. 1521 and 1651 of 1983) of the defendant/appellee, Daniel L. Lanager. We reverse.

The standard of review in such a case has been re-stated by this Court in Commonwealth v. Robinson, 351 Pa.Super. 309, 311-12, 505 A.2d 997, 998 (1986); viz.:

In reviewing an appeal from a trial court's granting of motion in arrest of judgment, we must determine whether the evidence offered by the Commonwealth was legally sufficient to support the verdict. Commonwealth v. Froelich, 458 Pa. 104, 326 A.2d 364 (1974). To reach this determination, we accept all of the evidence and all reasonable inferences therefrom, upon which the fact-finder could have based the verdict; we can affirm the granting of a motion in arrest of judgment if, viewed in that manner, the evidence was nonetheless insufficient in law to find guilt beyond a reasonable doubt as to the crimes charged. Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973). We must view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Hazlett, 429 Pa. 476, 240 A.2d 555 (1968). Our task is the same whether the finder of fact was a jury or a judge sitting without a jury. Commonwealth v. Meadows, 232 Pa.Super. 292, 331 A.2d 827 (1974) [, aff'd 471 Pa. 201, 369 A.2d 1266 (1977) ].

For ease of presentment, and with the preceding in mind, the facts underlying each of the two Informations will be discussed separately.

No. 1521 of 1983

At 3:30 p.m. on the 3rd of February, 1983, undercover narcotic Agents Shoup and Mohn were introduced to the defendant by a confidential informant (Marla). A discussion ensued in which the defendant was asked whether he could obtain some "sets", which is street jargon for two Tylenol No. IV tablets and one Doriden tablet. The defendant stated he could obtain them and to follow him and Marla into Erie.

With Marla driving, the defendant stopped in front of the "Good Cook's Bar and Restaurant". The agents parked directly behind the defendant. As the agents sat in their vehicle, they could see as the defendant hailed a black male, later identified as Hardy Ray "Skeeter" Gowdy, and the two engaged in a conversation through the window on the passenger side where the defendant was seated. Gowdy entered the vehicle and sat directly behind the defendant. Then, the first vehicle pulled forward another one hundred feet with the agents following. Marla, thereafter, got out of the driver's side, walked back to the agents and asked for thirty dollars to purchase some drugs. Agent Shoup complied and Marla returned to the lead vehicle.

By this time, Gowdy had exited Marla's vehicle and was standing along the passenger side. Both agents testified to seeing Gowdy pull a plastic pill bottle from his jacket pocket. The bottle was opened and a quantity of white tablets were emptied by Gowdy into his own hand. These pills were observed being given to the defendant through the open passenger window.

The first bottle was closed and returned by Gowdy to his pocket. He then produced a second bottle of pills from his pocket, emptied a portion of its contents (white pills) into his hand and again handed them to the defendant through the open window. After Gowdy walked away, Agent Shoup walked to the driver's side of Marla's vehicle and observed a number of white tablets in the defendant's left hand. When the agent asked, "... did we get them, were we able to get them ...," the defendant said, "Yeah."

The two vehicles proceeded to an open area to park. The confidential informant alighted from her vehicle and walked to the agents' vehicle and handed Agent Mohn two "sets", i.e., four Tylenol No. IV and two Doriden tablets. At this point, Agent Mohn walked up to where the defendant was seated and was advised by the defendant that he had to be very careful because certain individuals from Buffalo, who dealt in large quantities of "sets", were after him as a result of a previous dealing he had with them. Also, he led the agent to believe that he was in possession of a weapon.

Agent Mohn returned to his vehicle and left the area with Agent Shoup. The pills were analyzed at the Pennsylvania State Police laboratory, and the results confirmed that the pills were controlled substances.

No. 1651 of 1983

At about 10:45 a.m. on the 11th of February, 1983, Agent Shoup phoned the defendant and inquired about obtaining "an additional quantity of some sets." The defendant asked the agent to phone back later. The agent did so at 11:09 a.m. and was informed by the defendant that "he would be able to arrange a deal later that morning." The agent was also asked to go to the defendant's residence "to conduct the transaction." The agent did so about 12:00 noon and found the defendant in the company of one Denny McGavits. The agent, as he was seated at the kitchen table, was patted down by the defendant "to make sure that [he] was not the police." The two then conversed about the possibility of securing some "sets". The defendant asked how many he wished to purchase. The agent indicated ten "sets" at a price of one hundred dollars. The defendant informed the agent that he was waiting for a girl to arrive (Marla). Once she arrived at 1:00 p.m., the defendant stated, "... we could go to conduct the transaction."

With Marla driving, the defendant proceeded, again, to "Good Cook's" bar and parked. The agent followed and had McGavits as a passenger.

From the agent's vantage point behind the defendant, he saw the defendant exit Marla's vehicle and speak briefly to a black male, but this individual continued walking. The defendant was then approached by a Curtis Henderson and the two spoke on the corner of the intersection. When the agent tried to get involved in the transaction, the defendant advised him to wait in the vehicle, that "he would handle everything ... take care of things". The agent did so and could see the defendant and Henderson talking for several minutes. The two proceeded to Marla's vehicle and Henderson informed the agent to follow the defendant. Henderson rode with the defendant and Marla about fifteen blocks and parked. The defendant and Henderson emerged, and the agent approached the two and was told by Henderson that he would have to wait as Henderson went to get the "sets". Henderson returned within thirty minutes and everyone sat in Marla's vehicle. Henderson, who was seated in the left, rear seat, instructed her to drive.

During the drive, Henderson turned to face the agent, who was seated in the right, rear position in the vehicle, and asked whether he still wanted the "sets". The agent responded affirmatively and Henderson quoted the cost of one hundred dollars. The agent paid the money to Henderson. In turn, Henderson pulled out a small manila envelope from his coat pocket and counted ten tablets. Henderson gave them to McGavits to give to the agent since he was sitting between the two. Henderson pulled out another envelope and counted twenty white tablets, gave them to McGavits who gave them to the agent.

While everyone was still in the vehicle, but after the sale had transpired, the defendant, "... turned around in the front seat, faced [the agent] and requested that [the agent] give him something for arranging the deal." The defendant indicated that he wanted drugs, e.g., half a "set", and the agent refused. Instead, the agent gave the defendant ten dollars in "official" funds by placing it "on the car seat". After the agent had exited the vehicle, the defendant walked up to him and remarked, "... it was a pretty good deal purchasing the ten sets for a hundred dollars...." The agent did not agree and departed to have the tablets tested. The results showed that they were controlled substances.

At the conclusion of the Commonwealth's case, the defendant's motion to dismiss (demurrer) was denied.

The defendant took the stand in his own defense and contradicted the agents' accounting of what transpired on the days in question, e.g., (as to No. 1521 of 1983), it was Marla who conducted the purchase of pills from Gowdy and the defendant never received anything from Gowdy as he (Gowdy) stood outside the vehicle; (as for No. 1651 of 1983), it was Marla who spoke to Henderson, and the agent and Henderson struck a deal between themselves without the defendant's help. He also denied ever asking for any drugs or money from Agent Shoup in payment for setting up the sale/purchase.

The trial court, after listening to all the evidence, found the defendant guilty as charged. However, with the filing of a post-verdict motion seeking a new trial or arrest of judgment, the trial court altered its ruling. In an opinion filed on April 9, 1986, the trial court believed it had erred in entering the verdict it did at No. 1521 of 1983 because there were "insufficient facts to establish either that a delivery was made by the defendant or that a conspiracy was consummated between the defendant and Gowdy." Thus, "upon careful reflection, th[e] Court conclude[d] that all the Commonwealth ha[d] established ... [was] that the defendant possessed a number of white pills." (Trial Court Opinion at 3)

As for the charges listed at Information No. 1651 of 1983, the trial court, "upon careful reflection and reconsideration of the facts", concluded that the delivery had been proven, but the conspiracy between the defendant and Henderson was lacking in proof. Id. at 6. As a result, by orders dated April 9, 1986, the defendant's motion in arrest of...