*1 disrеgard contempt advising client to non- Magaziner ex rel. recorded order. Commonwealth supra. Magaziner, contempt reversed, conviction of the sentence appellant discharged.
vacated, participate did in the consideration J., Spaeth, decision this casе. Appellants. al., et Hill,
573' Argued November 1974. Before Watkins, J., P. Jacobs, Cercone, Hoffman, Price, Voort, Van der JJ. Spaeth, *2 appellants. Brunivasser,
Allen N. Pcmlick, Attorney, Louis R. Assistant District with him Eberhardt, Attorney, Robert Assistant District L. Tighe, John Attorney, First M. Assistant District and Hickton, John Attorney, Commonwealth, District J. appellee.
Opinion by P.J., 28, 1975: October Watkins, appeal judgment sentence, This is an from the Criminal of the Division of Common Court Pleas by Allegheny County defendants-appellants, the Izear by posses- Hill Hill, and Fred after conviction a sion of cocaine; and heroin and from post-trial the denial motions. August 19, detectives,
On three armed with persons searсh warrants for of each of the defend- ants, Sebring Avenue, Pittsburgh, for the residence at 250 Pennsylvania, belonged for a Oldsmobile which Hill, to rang Izear defendant to doorbell Sebring residence at Avenue and received no answer although lights premises. were on inside the The premises two up of the then sеt a surveillance officers later, away. the defendants one-half hour doors About approaching the leaving the were seen residence parked in of the residence. was front which Oldsmobile approached observing defendants, the detectives After detectives, and informеd them, identified themselves then Izear Hill the search warrants. defendants of bag carrying under to brown was tried conceal a he of the One in the trunk of the vehicle. some articles bag grabbed from him. took Izear Hill and officers qui- doing bottle, to contain later found In so brown cutting fell nine, heroin, often used substance began struggle ground. then Both defendants struggle during the another course officers by Hill, package, fell to the carried defendant Fred by ground. “half- bag Izear Hill contained 45 carried bags packets spoon” packets glassine and 11 bag glassine bags. paper carried The brown of cocaine packets “half-spoon” to contain Fred Hill was found *3 glassine bags. heroin in “half-spoon” Testimony at established that a trial grams of the substance and heroin consists of about 5 subsequent The search of sells for on the street. $25.00 spoons containing measuring the residence seven revealed containing large powder a two brown boxes white and glassine bags. no The Oldsmobile contained amount currency in also A total of was contraband. $721.00 persons of the defendants. found eight alleg- in their brief The defendants raise issues ing eight the trial Several the various errors court. only аllegations actually issue, being with one deal produced whether the evidence at trial was sufficient to proscribed trafficking the in convict defendants sub- September 26, 1961, in stances violation Act (q). P.L. 35 P.S. The 4(q), Section above prohibits control, possession, dealing Act “the in, dis- selling, pensing, delivery, distribution, рrescription, traf- ticking in, of, any giving dangerous drug.” or or narcotic category. the Both and cocaine fall this It is into appellants’ position, Commonwealth however, drugs appellants failed to that the in establish trafficked any specific attempted because no evidence оf or sale sale arguing was introduced at the In trial. so interpret “trafficking” have would us in word being synonymous “selling.” statute as word Edition, Dictionary, de Webster’s International Third engage fines “traffic” in as follows: “a. to commercial activity. engage illegal disreputable ... b. to in or busi activity.” Thus, ness is clear that the word “traffic” much person broader than word “sale” and that a engaged could be in a substance without being actually the one must who sells a substance. We legislature enacting note that section chose “selling” both “trafficking” include its words proscribed enumeration of activities. Since we havе estab synonymous logical that the are lished words “trafficking” drugs accomplished conclude can be though by a defendant even he never has made “sale.” give A statute must be construed to effect to all of its Twp. language. Elwert, v. Pa. Whitemarsh Auth. (1964). legislature pre 329, 196 A. 2d is also provisions not to have intеnded sumed its laws surplusage obviously would be the if the mere which case “trafficking” synonymous. held to be “sale” words Daly See, (1963) 2d Hemphill, 411 Pa. 191 A. (1972). 34 Leh. L.J. 539 Bostick, logic statutory In both the rules of construc “selling” it is tion therefore clear that dangerous drugs separate proscribed are activities.
Turning to facts of our case is also clear produced sufficient evidence was trial so at as to enable jury charge “trafficking.” on the to convict of Both quantities defendants were found with substantial persons. on their packaged The heroin was appellants process glassine bags in the of trans- fеrring neatly packaged from the resi- substances the time their arrest. The dence into the vehicle at large quantity residence itself to contain a was found commonly glassine bags package which are used to measuring spoons were found sell narcotics. also Several premises. quinine quantity A was found on large person of Izear Both defendants had amounts Hill. person. on their cash standing some of these facts alone would not While any type feel be indicative of of criminal behavior we that, together, enough produced taken evidence was so jury as to enаble a to infer that the defendants were engaged of the heroin and indeed cocaine despite any specific the absence of evidence of a sale. attempt argue
Defendants also that somehow our involving joint possession recent decisions affect this largе However, case. of the fact that amounts of persons prohibited found substances were both appli- clear that those decisions are not defendants cable here. by
The other issues raised the defendants do not merit discussion.
Judgment of sentence is affirmed.
Dissenting Opinion Hoffman, J.: Appellants contend that the lоwer court erred sub- mitting charge selling nar- their case to on a cotics, where there was no direct evidence of sale. August 19, 1971, plainclothes Martine,
On detectives up Ciganek, warrant, armed with a search set Joiner, Sebring Hill at surveillance of the residence Izear Pittsburgh. waiting approximаtely Avenue in After hour, half leave the detectives observed approach the rear house and of a 1969 Oldsmobile appellant parked house, belonged in front of the which *5 Izear The car, Hill. detectives then left their identified themselves, they appellant and informed the that a hаd search warrant. Detective Martine noticed that Izear Hill paper bag had a hand, trying brown in his and was bag stuff the underneath which he in the articles had grabbed trunk. Detectives Martine Joiner then Izear got bag they Hill and out his hand. While were doing so, a brown bottle fell to the street. The bottle was cutting found contain quinine, which is as a often used agent bag paper narcotics. The also contained 45 glassine half-spoon bags, analyzed size which were later half-spoon bags glassine as heroin, wrapped and 11 bags, which were later found to contain A cocaine. search yielded оf Izear Hill currency. $289.00 Ciganek While Detectives struggling Joiner and were Hill, package Fred a fell to the street. The contents package analyzed of the half-spoons were wrapped glassine bags. addition, In in cur- $432.00 rency person was taken from the A Fred Hill. search yielded Sebring of the residеnce at 250 Avenue seven measuring spoons containing powder a white and two containing large glassine bags. brown boxes number of yielded The search the car no contraband.
The 17,1971, were indicted on December possession of, selling dealing counts in heroin 13, 1972, jury guilty them cocaine. On June found Appel- on both Post-trial motions denied. counts. years lants were each sentenced to a term one to five imprisonment, without reference to count. appellants’ primary The contention is that the lower submitting charge selling court erred in dealing to the where connecting there was no evidence them specific with a sale or transaction.
argues proof unnecessary, theory such the statute forbids in narcotics as well as sales, trafficking may and that such be inferred from the possession of quantities sufficient of narcotics. The Com- interprets appellate no case which cites monwealth statute in this manner. language of The relies on
The Commonwealth Act,1 §4(q)., former 35 P.S. Device and Cosmetic Drug, prohibited possession, control, (q), which “[t]he distribution, pre- dealing in, dispensing, selling, delivery, dangerous giving of, any cription, in, or language was drug.” (Emphasis supplied). This narcotic indictment, ap- paralleled second count appel- charged parently a standard form, which *6 distribute, in, dispense, sell, deliver, lants did “deal away” prescribe, in, give cocaine. traffic (Emphasis supplied). §4(q) language of of This broad Act, must, the of the however, Act in of be read §20 penalties prescribes 35 §780-20, which for various P.S. person “[a]ny offenses under the (c), Act. Under §20 possesses any pro- drugs who the of narcotic violation subject felony, guilty visions of this act” of a i's prison five-year (Emphasis to a first term for the offense. supplied).. person sells, “[a]ny (d), who dis- Under §20 penses gives away any drugs violation narcotic provisions of guilty of felony, the act” is of a this subject twenty years’ imprisonment up to a term of to Any (Emphasis supplied). for a other viola- first offense. by (a). tion the of Act is classified as a misdemeanor §20 charg- appears, therefore, if count read as It this is ing by 219(b), only required Pa. offense, one Rule as §4(q) word taken from R.Crim.P., the proscribed defining must be read as further conduct (d). §20 by gives away” in “sells, dispenses, or the words charged Indeed, specifically as lower court requirements (d). “traf- Thus, word to the of §20 require- ficking” §4(q) found in not eliminate does away dispensing, giving proving as ment selling, requirеd just “possession” found (d), the word as §20 26, 1961, September P.L. 1664.
1. Act (a) in §4 does not requirement proving eliminate the a sale in order to penalty §20(d). invoke the possession
It is true large quantity drugs, of a at least under certain is sufficient evidence circumstances, to establish intent to sell under the new Controlled Sub- Act,2 (a) stances (30). P.S. See Common- Santiago, wealth v. (1975). 462 Pa. A.2d 440 Nevertheless, proof proof of intent sell not actual dealing. sale or
Although pointing the evidence an towards intent sell would not charge sale, be relevant to a of actual would determining be relevant whether the must possession bе resentenced charge, under the 39(a) new Controlled Substances Act. Section provides Act any yet case not final if the “[i]n act, penalties offense is similar to one set out this apply under this they act if than under are less those prior law.” A availability case is not final until appeal рetition is exhausted and the time certio- elasped. Simpson, rari has Commonwealth v. Pa. Superior (1972). Ct. 294 A.2d Therefore, yet instant not case is final, and was final effective date of the Act.3 It Controlled Substances necessary therefore to determine whether the offense *7 appellants fоr which the to were convicted was similar possession simple under the Controlled Substances Act4 1972, 14, 233, 64, seq. April 2. Act of P.L. et No. §1 Portalatin, Superior 3. v. Pa. We noted in Commonwealth 223 33, n.6, 36, 144, 146, (1972), 297 A.2d n.6 that confusion Ct. “[s]ome exists to the exact date on which certain sections of the new as act, including pertaining pеnalties, to and most sections offenses shortly passage became effective.” The Act was amended after its dealing sentencing that and to indicate the sections resentenc- ing, -115, -139, immediately. §§780-113, P.S. took effect 35 27, 1972, 499, 158, §1, ofAct June P.L. No. 35 P.S. §780-144. entirety 14, Act in took effect on its June 1972. 13(a) (16), (16), §780-113(a) 4. Section 35 P.S. which сarries year (c), a maximum sentence of one for a first offense. 35 §13 §780-113(c). P.S. Supreme possession or to with intent to deliver.5 Our recently of volume Court has held evidence drugs possessed determine value relevant to appellant convicted whether the for which an was offense possession was similar to with intent to deliver. Common- supra. Santiago, wealth v. improperly appears appellants
As it
selling
dealing,
alleging
count,
on the
convicted
second
grant an arrest
proved,
no sale or
would
where
deal was
I
judgment
This
neces
count.6
would
to this second
remaining
resеntencing
count.
remand
on the
sitate a
Superior
Lockhart,
See
Pa.
Ct.
Commonwealth v.
Resentencing may
(1972).
also be
I would arrest the
remand for resen-
indictment,
second count of the
Lockhart,
tencing consistent with Commonwealth v.
Santiago, supra.
supra, and
dissenting opinion.
Cercone, J., joins in this
Dissenting Opinion by Spaeth,
J.:
quite agree
that when
I
with the President Judge,
legislature prohibited
selling,
. .
[and]
“.
in,
dangerous
drug,” presumably meant
any
narcotic
(a) (30),
(a) (30),
P.S.
which carries
Section
5.
§780-113
offense,
years
for a first
case
a maximum sentence of fifteen
(f),
(f).
of heroin.
35 P.S.
§13
only post-trial
Although
appearing in the
motions
6.
trial,
from
are motions for a new
clear
the lower court’s
record
question
sufficiency
opinion
evidence
each
Insufficiency
presented
the court.
count was
decided
ground
judgment,
an
is a
arrest of
rather than
evidence
Dale,
Superior
trial.
for a new
See Commonwealth v.
Pa.
Ct.
(1975).
In Judge not, points did I out. Hoffman join therefore cannot Judge con- President in his “ clusion n logic of both the rules of [i] statutory construction it is thеrefore clear that ‘traffick- ing’ ‘selling’ dangerous drugs separate proscribed are (Opinion 575). they activities.” “separate at That are may clear;1 only activities” “proscribed”; be but one “proscribed” mean, cannot “You not do this must act”; mean, you you it must “If do this be act, will subject punishmеnt.” legislature to this omits the If punishment clause, supply cannot it. courts obligation unclear,
Granted our
to make clear what
pretend
powers
we
must
we do not have.
hope
legislature
statute here defies
clarification.
I
will amend it.
State,
1. But see
v.
151,
(1st Dept. 1958), State Ore. 326 P.2d (1958), which treat as one of the definitions “selling.” Korpa, Stuyvesant Appellant, v. Life Insurance
Company, Appellant.