![]() The prosecution could not and in fact did not attempt to convict appellant by establishing that he had engaged in "possession. Since the bill alleged only that appellant had committed a "sale", the Commonwealth, absent an amendment to the bill expressly allowed by the trial court, was limited to proving that appellant was guilty of a "sale". ![]() Thus it has long been the law in Pennsylvania that the Commonwealth is restricted to proving what it has set forth in the bill. The function of a bill of particulars is to enable the accused to prepare for trial and to prevent surprise. But everything that has gone on here is comparatively unimportant except the question, did this Defendant sell hashish to the young man named Guy, and you folks are the ones that are going to have to decide that question of fact." (Emphasis added.) It has taken us a long time to get to the point where we are now, and we are almost finished, to the point where your deliberation is. The question is, did this Defendant sell hashish to Paul Layton Guy. Guy, and James Martin Heisey, who participated in the sale." (Emphasis added.) Furthermore, the trial judge in his charge to *477 the jury framed the issue to be decided as follows: "The issue here couldn't be any more narrow. The parties involved in the crime were Frank Peter Simione, who sold the hashish to Paul L. The offense occurred on Novemat 324 Front Street, Marietta, Lancaster County, Pennsylvania. The bill of particulars, after setting forth that defendant was charged with a violation of Section 4(q) of The Drug, Device and Cosmetic Act, and quoting the words of that section, went on to specify: "The facts upon which this prosecution are based are that Frank Peter Simione sold one gram of hashish, a compound or derivative of marihuana, a narcotic drug, to Paul L. The Commonwealth's description of the bill of particulars and the judge's charge is thoroughly substantiated by the record in this case. The case was presented and argued to the jury on the basis that Simione was either guilty of a sale or nothing, and the Court's charge left no room for doubt concerning the nature of the offense charged." This bill, as is conceded by the Commonwealth, specifically set forth that appellant "was charged with the sale of hashish. However, appellant moved for and obtained a bill of particulars. The indictment alleged that appellant "did possess, control, deal in, dispense, sell, deliver, distribute or traffic in a narcotic drug: to wit: Hashish." *476 The indictment returned by the grand jury accused appellant in language nearly identical to that of Section 4(q) of The Drug, Device and Cosmetic Act. Guy readily admitted that he had sought out appellant for the sole purpose of making such a purchase and that he was in fact employed as an undercover agent of the Pennsylvania State Police." Heisey accepted the money and gave the gram of hashish and five dollars in change to appellant who in turn gave the hashish and change to Guy. Guy stated that he gave a twenty-dollar bill to the appellant who then handed the money to Heisey. Guy testified that the alleged transaction took place in the kitchen of his apartment and that he, appellant, and Heisey were all present. "At the trial the Commonwealth presented evidence to the effect that one Paul Guy had persuaded appellant to arrange the sale of a quantity of hashish through a third party, James Heisey. The facts of this case are well-summarized in the dissenting opinion in the Superior Court. Accordingly we reverse the judgment of sentence. We agree with appellant that the Commonwealth's evidence was insufficient as a matter of law to establish that he "sold" a narcotic drug. Subsequently this Court granted allocatur. The Superior Court affirmed the judgment of sentence by a per curiam order, with Judges HOFFMAN and CERCONE joining Judge SPAULDING'S dissenting opinion. He was sentenced to two to five years imprisonment. ![]() Simione was convicted, after trial by jury in the Lancaster County Common Pleas Court, for violation of Section 4(q) of The Drug, Device *475 and Cosmetic Act. JUSTICE ROBERTS, April 20, 1972:Īppellant Frank P. ![]() Newcomer, District Attorney, for Commonwealth, appellee. Brubaker, Assistant District Attorney, and Clarence C. *474 Before BELL, C.J., JONES, EAGEN, O'BRIEN, ROBERTS, POMEROY and BARBIERI, JJ.
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