421 A.2d 681 | Pa. Super. Ct. | 1980
On January 20, 1978, appellant was arrested and charged with possession of a controlled substance, methamphetamine, in violation of the Controlled Substance, Drug, Device and Cosmetic Act.
During trial, appellant offered no evidence tending to show his possession of a license to carry drugs, nor did the Commonwealth attempt to prove his non-licensure.
“Recognizing that the registration provision of the Act does grant an excuse for conduct otherwise prohibited, and recognizing that the Act intends control over certain substances, we hold that proving a defendant not to be*203 registered is not a necessary element of the crime of violating the Act. With this belief, we find that the cases support a conclusion that it is not a violation of due process to place upon a defendant the burden of proving his registration.” Id., 234 Pa.Super. at 312, 339 A.2d at 92.
However, unbeknownst to the parties and the trial judge, this court filed an opinion five days prior to the commencement of appellant’s trial in which we reviewed our earlier holding and concluded that Commonwealth v. Stawinsky, supra was no longer a proper statement of the law in this Commonwealth. See Commonwealth v. Sojourner, 268 Pa.Super. 472, 408 A.2d 1100 (1978) (hereinafter Sojourner I). At the conclusion of trial, appellant discovered the Sojourner I opinion and brought it to the attention of the trial court. Unfortunately, what appellant failed to discover was that the effect of the Sojourner I opinion was nullified by an order entered August 21, 1978,
The Commonwealth contends that the order of the trial court dismissing a motion in arrest of judgment and granting a new trial is an interlocutory order, citing Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970). While that may have been the rule in 1970, on July 1, 1976, Pa.R.A.P. 311(b) became effective. As promulgated, Rule 311(b) provides that “[a]n appeal may be taken . . . from an order in a criminal proceeding awarding a new trial where the defendant claims that the proper disposition of the matter would be an absolute discharge.”
Addressing the merits, we disagree with appellant that arrest of judgment is mandated by this court’s ruling in Sojourner I. We reach this conclusion because on June 22, 1979, after reconsideration of our earlier opinion, this court issued a second opinion, Commonwealth v. Sojourner, 268 Pa.Super. 488, 408 A.2d 1108 (1979) (Sojourner II), wherein we reversed our earlier ruling in Sojourner I and held that the Commonwealth has the burden of proving non-licensure beyond a reasonable doubt only when the accused comes forward with some credible evidence of authorization. In Commonwealth v. Louis, - Pa.Super. -, 425 A.2d 840 (1980), we held per curiam, that in a situation such as the instant case in which a trial court dismisses a motion in arrest of judgment and awards a new trial on the basis of Sojourner I, the order of the trial court will be affirmed. On the basis
The motion of appellee to quash the appeal is denied and the order of the trial court awarding a new trial is affirmed.
. Act of April 14, 1972, P.L. 233, No. 64, § 13, as amended, 35 P.S. § 780-113(16).
. Section 6 of the Act (35 P.S. § 780-106) provides that a person duly registered with the Secretary of Health of the Commonwealth may manufacture, distribute, retail, sell, offer for sale, and solicit the purchase of controlled substances.
. We note that in the publication of Sojourner I at 268 Pa.Super. 472, 408 A.2d 1100, the petition for reargument is erroneously reported as having been granted on August 21, 197ft
. The court evidently focused on three facts: (1) that by his own admission appellant came into possession of 60 tablets of desoxyn as a result of a prescription rendered by a doctor and filled by a pharmacy; (2) the substance was found in an unmarked bottle in liquid rather than tablet form; and (3) appellant was found in possession of a syringe that he had concealed in his sock.
. That provision was amended after the instant appeal, and has been substantially reenacted in Pa.R.A.P. 311(a)(5).