The opinion
Opinion by
Montgomery, J.,
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
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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 i*eversed and appellant discharged.
Wright, P, J., would affirm on the opinion of Brown, J.