*1 99 the replacement juror However, of a an by alternate. juror was “disqualified” since the witness first defense the sister of the juror. Commonwealth v.
In
Saxton,
438,
466 Pa.
Furthermore, the conviction of murder of the first degree of appellant, Jerry, should be reversed and appellant, Jerry, discharged as to murder of the degree. first There is no evidence to support finding of deliberate premeditated 18 killing. 2502(d). Pa.C.S.A. Use of a on deadly weapon § a vital part of the alone, body, standing enough is not support a Commonwealth v. finding “premeditation.” O’Searo, 224, 241, 466 30, Pa. (1976) (Manderino, 352 A.2d J., dissenting opinion).
ROBERTS, J., joins in this dissenting opinion.
Argued March 1979. 1,May
Decided 1979. *3 Sharon, Leonard I. for Pittsburgh, appellant. Eberhardt, Colville, Robert E. Dist. Robert L. Atty., Johns, Charles W. Asst. Dist. for Attys., appellee. J., NIX, EAGEN, O’BRIEN, ROBERTS, Before and C. LARSEN, MANDERINO and JJ.
OPINION MANDERINO, Justice. Driscoll, possession, Patrick
Appellant, charged deliver, of a controlled with intent to Substance, Drug, substance in violation of the Controlled Act, 780-116, Device and Cosmetic 780-130. P.S. §§ trial denied, brought Pre-trial motions were and he was before a A mistrial was declared because of judge jury. reach a verdict. In second jury’s inability appellant’s *4 trial, a found him on all three counts. Post-ver- jury guilty denied, dict years proba- motions were and sentence of three tion was imposed. which
Appellant Superior then to the Court appealed (Hoffman, J., affirmed We dissenting). granted appellant’s petition for allowance of and this followed. appeal appeal failed prosecution that the has appellant argues
Initially, We charged. to establish all essential elements of the crime agree. at that on the prosecution’s
The evidence trial established 17, 1974, of Detective James of evening Ramsey December intro- Police was Pittsburgh, Pennsylvania Department, had appellant by Ramsey duced to an informant with whom infor- been This introduction came about after the working. mant in a Point Park Ramsey appellant’s took room ap- he College Ramsey purchased testified that dormitory. 1,000 amphetamine, to be proximately capsules, purported from for A appellant criminologist’s analysis $200.00. The entered into evidence on of both counsel. stipulation stated that there were 979 criminologist’s report capsules; of performed sample tests were on a selected randomly those the tests capsules; presence and that disclosed amphetamine and caffeine. The did not report specify number of nor did it state capsules actually analyzed, amount of cap- found to be in those amphetamine present sules analyzed. is
Appellant prosecution’s contends that evidence insufficient although to sustain a conviction because evidence establishes that appellant possessed amphetamine, alone is not a According appellant crime. prosecution quantity (1) evidence of the present amphetamine possessed; (2) quantity evidence that possessed has a for abuse. this potential case it present concedes that did not evidence as to the quantity of nor evi amphetamine possessed present did it dence of what quantity amphetamine has a for potential however, abuse. The the law prosecution, contends does not it require prove possessed by the quantity appellant or the which has a for abuse. Our examination of the scheme of the Act and of statutory us to statutory language compels reject prosecution’s view.
The statutory scheme of the Act divides controlled sub- stances into five categories. categories different These five are designated in the Act numbered as “Schedules” and are as Schedule I through Schedule V. was convicted Appellant iii violating subsection of Schedule II. That subsection
104 it a with other of the Act makes conjunction parts read in deliver, crime to with intent to or deliver: possess material, prepara- . . mixture or any compound, “. following of the sub- any quantity tion which contains stances, associated with the having potential for abuse system: stimulant effect on the central nervous Amphetamine, salts, isomers, and salts 1. its optical its optical of isomers.
2. Phenmetramine and its salts.
3. Methylphenidate. of any quantity 4. substance which contains Any salts, salts its isomers and methamphetamine including of isomers. added.)
(Emphasis 780-104(2)(iii).
35 P.S. § Appellant language emphasized claims that to above Act quoted portion requires prosecution of the appellant that which prove amphetamine have and delivered was sufficient allegedly possessed with the . .a for abuse associated stimu- potential lant effect on the central nervous system.” phrase
The that by urging counters with the “. . . for abuse associated having system,” stimulant effect on the central nervous modifies word, “substance,” the word preceding “quantity,” not mean so that Act should be portion interpreted this any quantity or proof amphetamine is sufficient to sustain a conviction. for this is one of first question presented impression Court, however, a similar
Court. The addressed Superior Teada, v. in Commonwealth 438, 344 problem Pa.Super. 235 case, was called (1975). Superior A.2d In that Court upon appears identical which Sched- interpret language ule II which is now III of the Act rather than Schedule with substances before us. II is concerned Schedule stimulate III is while central nervous Schedule system the central nervous depress concerned with substances identical. Otherwise, language is significant system. *6 provides: III Schedule mixture, material, preparation or
“(i) Any compound, following of the any quantity which contains with a for abuse associated having potential substances a system: effect on the central nervous depressant of a any quantity 1. substance which contains Any acid, salt of a derivative any derivative of barbituric or of barbituric acid.
2. Chorhexadol.
3. Glutethimide.
4. acid. Lysergic Lysergic
5. acid amide.
6. Methyprylon. Phencyclidine.
7.
8. Sulfondiethylmethane.
9. Sulfonethylmethane.
10. Sulfonmethane. added.)
(Emphasis
35 780-104(3)(i). P.S. § Teada,
The
Pa.Super.
defendant in Commonwealth v.
235
438,
(1975)
charged
selling
The Teada court held that the Act manifested a intent of certain proscribe delivery substances if were in sufficient only they present have nervous If depressant system. effect on the central quantities, posses- not shown to have been in such present sion or of such substances was not criminal under grant appellant’s petition Act. Our for allowance of appeal based, in the case was part, upon instant apparent conflict between Teada and the result reached by Superior Court in this case. case, purpose
Our in this as it is in case any statute, of a is to requiring interpretation give effect to intent legislature. To determine that intent we look scheme, both to the statutory language and to the specific the Act. legislature every We assume intends See, word of the statute have Statutory effect. 1972, Construction Act of 1922(2) (Supp. Pa.C.S.A. 1978- § 79). Secretary Act authorizes the of Health of the Com-
monwealth certain substances in I to control listed Schedules V. An I V through through examination Schedules danger- reveals that I is concerned with the most Schedule ous and each is succeeding controlled substances Schedule progressively dangerous concerned with less controlled sub- stances. Each in turn Schedule has various subsections. The Schedule II with which we are concerned contains four subsections. The control sub- first two subsections certain stances such as coca leaves and certain derivatives. opium, In these two subsections there is no reference to quantity having appear. nor does the a for abuse language potential iii, These terms in the appear however subsection subsection IV is (Subsection under which was convicted. appellant here) appear definitional and not relevant These terms also in the relevant subsection of Schedule III which was before Teada, the Superior Court in supra. Tea- to the result in attempts distinguish
da with the court the us. The that of trial in case before concerned prosecution argues that in Teada the court was substance, with the under phencyclidine, which is controlled Schedule III. that fewer Since the scheme is such statutory may imposed restrictions be the latter sections upon with, since the we ampheta- substance which are concerned mine, substance, is a II prosecution argues Schedule analysis Teada is inapplicable. must and we simple deceptively is reasoning
This the fact First, notwithstanding two reasons. it for reject and this case III substance a that Teada concerned Schedule two of the substance, language II involves a Schedule different identical and is interpret which we phrases identical lan applied cannot be rationally interpretations different in the two though phrase appears even guage III are II and Schedule both Schedule Secondly, Schedules. in both the subsections Some of divided into subsections. listed sub of a state that amount clearly “any” Schedules both subsections of Sched stance is The other prohibited. . in language question “any ules contain the — prosecution’s for abuse.” To follow having potential a a had legislature recognize be to rationale would into subsections III dividing distinct in Schedule purpose was no reason there at the same time conclude The obvious conclude. II. We cannot so subdivide Schedule iii in subsection establishing legislature intent of delivery or possession prohibit II was not Schedule in subsec amount, those substances as amphetamines any Rather, was to the intent ii prohibited. tions i and are contain amphetamines or prohibit for abuse. quantity having a sufficient ing which contains “. . . interpret phrase To having potential substances, following any quantity on the central stimulant effect for abuse associated with the system” modifying portion nervous with the underlined *8 the under- reduces actually not “quantity” “substance” and to the meaning give In order to lined portion surplusage. them as do, interpret must words, we required as we are modifying “quantity.” legisla with the is consistent interpretation
This penal construe strictly courts are to tive mandate that in such acts statutes, contained any ambiguity and against the accused be in favor of interpreted 1972, 1 Pa.C. Act of Construction Statutory prosecution. the Act wording of 1978-79). The 1928(b)(1)(Supp. S.A. § proof, require intent to legislative demonstrates clearly regard substances, to certain in they present were sufficient to have an quantity upon effect the central nerv- effect; (Schedule ous II a stimulant system Schedule III a depressant effect) before their or be- substances, comes criminal. or delivery Possession of other more dangerous in the legislature’s judgment, prohibited is regardless of Amphetamine amount. is one of those sub- stances which legislature chose to if a prohibit only quantity was or delivered which possessed has a for abuse.
In its opinion denying appellant’s post-verdict mo tions, the trial court concluded that had sustained its burden under even construction statutory required by Teada. The trial court said:
“It can be concluded all beyond doubt that nine hundred and seventy-nine amphetamine no matter what capsules, their strength, collectively ingested, poten- would have a tial to act as a stimulant on the nervous system.” We must respect the trial court’s as reasoning dangerously all, simplistic. First of we are with a criminal dealing out, statute and as are to be previously pointed they strictly in construed favor of the accused. Secondly, ingestion of 979 of watermelons, anything doughnuts, or chocolate — bars, has a potential for abuse. To to the give statute trial court’s meaning would be for those proper substances in the Act which are outlawed or the regardless substance’s potential for abuse. To accept interpreta- tion as to amphetamine is to ignore statutory scheme and the modifying language of subsection iii of Schedule II. Moreover, there are controlled substances covered by Act which be in may possessed although minimal quantities outlawed larger quantities. Minimal amounts of codeine contained in a medicine cough may be purchased pos- sessed without a prescription. Larger of codeine quantities cannot. There is no basis the Act for that the concluding legislature intended an addition of the 979 capsules. language used by legislature material, is “any compound, mixture, or preparation which contains any quantity *9 having a for abuse.” The potential substances following but as legislature interpreting did not word capsule use the statute, the lan- concerning we are doubt any a criminal against prosecution. must be the Cer- guage used resolved substances tain foods contain traces of controlled everyday dangerous. each is not yet individually item appellant’s has argued also that prosecution The counsel, laboratory of the crime to the content by stipulating sufficient the issue of report, misled the on prosecution The con stipulations under the statute. quantity applicable counsel: appellant’s sisted these words by testify, were to Dorothy “I will if Toth called stipulate criminalist, that substance was the she would the testify is I believe amphetamines checked it was which and 2 (iii) under 1.” controlled Schedule is dispenses the usual one that stipulation only the the a witness in court- physically present to necessity room. did as to Appellant’s attorney stipulate quantity not abuse, or the or as the quantity necessary for to necessary crime, itself was only elements of the but that substance amphetamine. stipulation misleading. We find fail to to Appellant has raised issue of sufficient have each stage proceedings for abuse at Because judgment must now be reversed. sentence has to all the material ele- prosecution failed establish II, ments subsection iii of necessary under Schedule conviction cannot stand. following has raised the issues
Additionally, appellant (1) prosecution which we need not failed consider: not the Act to prove appellant registered was under charged since possess amphetamine; (2) jury appellant the prosecution proving has the burden of was not is law as set contrary licensed the verdict have been charge; (3) forth the indictment should arrest; (4) the quashed delay due inordinate with the name of supplied appellant should have government in the sale. intermediary involved *10 of Judgment sentence reversed and appellant ordered discharged.
EAGEN, J.,C. filed a concurring opinion which NIX LARSEN, JJ., joined. EAGEN, Justice, Chief concurring.
The Commonwealth failed establish what the amphetamines was sufficient “. . . have abuse for associated the stimulant effect on the central nervous Nor system.” did the Commonwealth establish the quantity capsule each of those amphetamine analyzed possessed. reasons,
For these I agree judgment conviction and may sentence not stand. LARSEN,
NIX JJ., in this join opinion.
Argued March 1979. 1,May Decided 1979.