*1 appeal. fact, on January handled In ap- on pellant petition prohi- filed this Court for writ of substantially bition which was petition similar to the which was denied Commonwealth Court. We de- petition per nied the to this Court curiam without opinion on effectively settling March ques- tion of whether the appropriate. issuance the writ was
I
prohibition
do
believe that a writ of
have
issued from this Court or from the Commonwealth Court
in the
this
Therefore,
circumstances of
case.
I would
hold
right
dispo
Commonwealth Court made the
appellant’s petition
sition
it,
albeit
for the
wrong reason. A correct result should be
if it
sustained
can be sustained for
Turnway
reason whatsoever.
Soffer,
v.
Pa.
EAGEN dissenting opinion.
v. Benjamin et al. SANTIAGO Pennsylvania COMMONWEALTH SANTIAGO, Appellant. Ann Sheila Supreme Pennsylvania,
Argued April May Decided 21.7 *3 A. Fitzpatrick, Jr., Atty., Dist. Richard F. Emmett Richman, Asst. Atty., Sprague, Dist. David First Asst. Stotland, Chief, Appeals Div., Atty., Maxine J. Dist. Atty. Gafni, Deputy Atty., Dist. Asst. Dist. Abraham J. Law, Philadelphia, appellant. for for Benjamin Philadelphia, appellees, Weinstein, for David Santiago Santiago. and Isidoro appellees, Philadelphia, Manuel Moser,
Donald M. Santiago Santiago. and Sheila EAGEN, O’BRIEN, JONES, J., ROB-
Before C. ERTS, POMEROY, JJ. MANDERINO, NIX and THE OF COURT
OPINION NIX, Justice. Benjamin Sheila, Manuel, San-
Appellees, Isidoro jury in by judge tiago sitting without convicted appellees Philadelphia County. were found All four guilty conspiracy.1 illegal possession of heroin and prison five Each was sentenced to a term two years. Drug De- indictments were laid under Act, September 26, 1961, vice and Cosmetic seq., seq. et et 780-1 appeal On affirmed the convictions. Pa.Super. A.2d Santiago, Commonwealth v. court, however, That the sentences vacated resentencing the new and remanded cases for *4 Act, Substance, Drug, Controlled Device and Cosmetic April 14, 165, seq. 1972, 64, 1 et effective June P.L. No. § 14, seq. (Supp.1974-75). et 780-101 § illegal Superior Court held that sentences applied the premise judge on the should have that 780-4(q). § September 4(q), 1. of P.L. P.S. Act Attorney the Common- After the Assistant District conceded attempted charges or sales of weak on the of sales wealth’s illegal case narcotics, granted di- upon proper the trial court motions Santiagos of indictments rected for the on those verdicts bills charging attempted of sales or sales narcotics. Drug sentencing provisions Be- of the new analogous Superior crime in cause Court found simple illegal possession Drug of her- the new Act to be oin, not more their order would result sentence of a year than one for each The Commonwealth individual.2 appealed and we from the order of granted to of which allocatur limited a determination Drug sentencing. applies purpose also for the We permitted Santiago of the refus- Sheila to raise the issue recognize the trial to the defense al- court coverture.3 Philadelphia January 8, 1972, officers of the
On five Department and Shei- Police went to the home Manuel offi- Santiago la to serve a search warrant. When Santiago appeared in an door, cers knocked on the Sheila upstairs inquired to what the officers window and as Act, Substance, April Drug, Device and Cosmetic Controlled 14, 1972, P.S. No. effective June (Supp.1974-75). 780-113 “(a) Common- following causing acts and the thereof hereby prohibited: wealth are (16) or coun- Knowingly possessing a controlled intentionally or a act or by registered this person a under terfeit substance not State
practitioner appropriate registered not or licensed from, board, pursu- directly or unless the substance was obtained to, practitioner, ex- or a prescription ant cept or order of a valid order act. otherwise authorized this (1) clauses (b) Any person provisions of who violates misdemeanor, a through (20) (a) guilty subsection shall shall, on con- (19) except (4), (6), (7), (8), (9) and for clauses exceeding one thereof, imprisonment not viction be sentenced to ($5,000), year exceeding dollars pay a five thousand to fine not shall, (19) on both, (9) (6), (7), (8), (4), and for clauses exceeding imprisonment not conviction thereof be sentenced dollars exceeding years five thousand pay three fine not or to prior but, both; after ($5,000), or if the violation is committed act person of this conviction of such violation im- final, person be sentenced section shall has become such exceed- prisonment pay not exceeding years a fine or to three ing both . twenty-five ($25,000), or thousand dollars defendants nothing suggest these There had a in the record record for narcotic convictions. Santiago. Santiago 3. Sheila the wife of Manuel *5 his iden- wanted. When Ira Andrews announced Officer tity purpose, asked then called her husband who she them, question. but same Officer Andrews answered forcibly opened, en- the door was not officers when upstairs sledge tered with the use of hammer and ran they to the floor found the second rear bedroom where room, Santiagos. entered the four As Officer Andrews Santiago something open of an he saw Sheila throw out Upon retrieving it, package was identified window. packets other bundle heroin. Seventeen bed, the other bundles were found on the around which appellees three seated. Also on the bed were spoons, blades, empty glas- strainers, razor hundreds of pouches packets, sine and rubber bands. Two additional containing pound another half of heroin were found judge this as a under the bed. The trial characterized drug operation cutting bagging heroin wholesale exceeding had an estimated “street value” $250,000.00.
After a review the record arewe satisfied order must and the be reversed judgment of trial court sentence reinstated. Drug applies
The new
not final as of
all cases
14, 1972,
June
of the Act.4
which is
effective date
Santiagos
were not
sentenced until October
Drug
At that time their case was not final when the new
Goodman,
Act went into effect.
v.
Commonwealth
(1973);
Pa.
Thom-
“Three must pending elements be before prosecution governed by be can the new Controlled (1) original charged Substance Act: offense must Act; (2) pen- be similar to one set out in the new provided in alties the new Act must be less than those prior law; (3) established the case must litigated.” finally 555, be at Id. 450 Pa. 301 A.2d at 364. presence
The of the third element has been conceded. presented The appeal critical in issue is whether the original charged offense is similar to one set out in the And, preceding new Act. question if the answered provide affirmative, greater does the new section punishment permitted than that under the former Act.
Initially, we note that heroin is a “controlled regulated by substance” 1972, section 4 of the Act of 35 (ii) (10). 780-104(1) original P.S. § The offense with Santiagos they charged were and of which illegal possession convicted was heroin under sec 4(q) tion 780-4(q).5 the Act 35 The P.S. § analogous Court found that offense under “knowingly intentionally possessing new Act was or a controlled . . comparing . substance.”6 When constructing the two pro- laws and “similar” word 39(a) vided in section of the Act of we need not find the offenses identical. It is sufficient that the char- charged acteristics of the alike, offense resemble 1961, supra 4(q), § 780-4(q): at 35 P.S. control, in, possession, “The dealing dispensing, selling, deliv- ery, distribution, in, prescription, of, trafficking giving dangerous drug.” or narcotic supra 6. Act of at 780-113(a)(16); supra see note 2.
223 Simp- Commonwealth correspond to the new See law. Pa.Super. Common- son, A.2d 805 222 294 allo- Shaffer, Pa.Super. A.2d wealth v. 103 (1954). Common- denied, Pa.Super. Cf. catur XXV Pope, A.2d 455 Pa. wealth v. appellant herein, contends that Commonwealth, paraphernalia quantity of heroin and of the vast
because in- Santiagos, possession the crime found analogous “possession intent with here is volved argue Santiagos deliver” under the illegal un- finding guilt possession of heroin that a “simple to the offense of der Act of 1961 is similar possession possession”, is, knowing and intentional Drug They that there note under the new heroin Act. *7 Act or the quantitative the old no limits either are guide prosecution to distin- the courts or the new Act to Appellees that guish further contend the two offenses. “possession guilty intent to deliver” with to find them they for which an additional offense would create unpersua- Santiagos’ arguments not tried. find the We sive. justi- presented surrounding the arrests
The evidence purpose oth- finding possession a fied a was for presence personal $250,000.00 er worth use. The bands, heroin, glassine packets, razor rubber paraphernalia, indicated unquestionably blades and other planned distri- or other future transfer either sale bution. Comprehensive Drug Prevention Abuse Federal 841(a) contains
and Control 21 U.S.C.A. § provision legislation.8 Pennsylvania similar to the new provides pertinent part: It Except title, un-
“(a) as it shall be authorized intentionally (1) any person knowingly lawful for or — 13,§ 780-113(a)(30). Id. at Pennsylvania’s legislation adoption Con- is an of the Uniform Dangerous drafted trolled Act was Substances Act. The Uniform 224 manufacture, distribute, possess dispense, or with manufacture, distribute, dispense,
intent a con- ” substance, . trolled . . consistently interpreted by That Act has been the federal quantity courts allow the and value of the narcotic drug purpose as circumstantial evidence to infer drug possessed. intent with which the narcotic Fifth reasoned: Circuit validity question of
“The of the inference turns on sup- whether the amount of cocaine was such will port an of intent to distribute as distin- inference guished possession personal from mere use.” Mather, (5th United v. 465 States 1037 Cir. F.2d 1972). also, (8th
See
Echols,
United States v.
In (10th United States F.2d 353 Cir. 1973), court found: pos
“The ‘intent’ with controlled substance generally through sessed is established circumstantial *8 regard evidence and in this we have held that the quantity drug possessed is a circumstance which may permit possessor the inference that the had an in sell, tent to deliver or otherwise distribute. clearly, vagueness, statute without and makes un coordinated, uniformity achieve codified between state and legislation federal and enforcement. With the enactment of the necessary federal of it was that the states revise and update drug Annotated, generally, their laws. See Uniform Laws date, jurisdictions U.L.A. To fifty-one adopted have either the Uniform Dangerous Controlled Substances Act the Uni- Drug Pennsylvania form Narcotic Act. Uniform Controlled Sub- stance, Drug, Act, Notes, (Supp. 1974-75). Device and Cosmetic possession with the substance lawful of controlled quantity question the intent to an distribute. The permit possessor the hich would that inference w and evidentiary had an intent to is in nature distribute necessarily depends upon circum all and facts hand, in the stances and mention case at thereof unnecessary.” entirely statute Id. at 356-357. (Emphasis added). case, conclude of this we
Under facts analo appellees were convicted offense which the gous possession heroin intent to deliver with simple possession not of heroin. statutory Thomas, supra, lan- standards and the
Under guage, penalty Drug Act is where under new Drug greater prior law, the Act sen- than under the new tencing provisions inapplicable. penalty are under possession re- the Act 1972 for intent to deliver with imposition up years in quires the of sentence to fifteen prison up Fifty or a fine to Two Hundred Thousand ($250,000.00).9 greater penalty Dollars This is a Accordingly, that existed law.10 under Santiagos may not receive benefits of the Controlled Substances Act of therefore reinstate sen- We imposed by judge tence Act. the trial former Appellee, individually that Sheila contends Santiago, the common “coercion coverture, law doctrine Perkins, (2d Law, wife husband” Criminal 909-918 1969) applied excusing case, thereby ed. her her criminal Historically, married misconduct. woman committing presence, a crime in her husband’s created a unwilling presumption rebuttable the wife was an participant. Wigmore Evidence, 425, (3d on at supra § 780-113(f)(1). 9. Act of at P.S. supra § 780-20(c) provides
10. 35 P.S. a sen at years of not tence less than two nor more than and a fine five exceeding ($2,000.00). Two Thousand Dollars *9 originated 1940). concept with the of coverture ed. unity husband and common law fiction of of wife. of coercion’ has been attribut- “The so-called ‘doctrine ‘legal identity wife,’ to the of husband and ed to the original husband;’ ‘duty the sta- to her to obedience husband,’ only tus of the wife as ‘the servant ‘marionette, husband;’ at to moved will power wife; to chastise to of the husband husband;’ subjection of the wife to her ‘matrimonial authority ‘power which husband has and her igno- aof in the her;’ over and even to a ‘relic’ belief pusillanimity not, is rance and women Perkins, supra at perhaps was, never well founded.” omitted). (footnotes obviously theory absent statuto- outmoded and This provisions re- ry question must contrary, present day light considerations rather in the solved appropriate to the Middle more than considerations Ages. political, social, and independence of women of coercion out- the doctrine matters renders
economic society. As we have inapplicable to modern dated and noted in another context: past vestige clearly of the presumption
“Such a recognition of present incompatible with the reluctant equality must not be law sexes. The developments society and remain abreast with unhesitatingly former doctrines discard embody concepts been discredited.” that have since Conway Dana, 456 Pa. 318 A.2d Act, I, also, 27; See Married Women’s Pa.Const. art. July seq., 15, 1957, et No. seq. et
32.1
ux.,
Lawson et
454 Pa.
Our
Commonwealth v.
legal
(1973) repudiated
fiction
227
unity
of husband and wife. We
held that both
there
properly
a husband and a wife would
convicted
conspiracy.
abrogation
The rationale for the
of the com-
pertinently
mon
rule
law
was
stated:
speak
“Some authorities also
of the natural state of a
wife’s
to
submissiveness
her husband and conclude
state,
wife,
that because of
lacking
such natural
a
own,
will of her
possibly
not
could
formulate the neces-
sary
guilty
criminal
intent
conspiracy
to be
with
her
perpetuate
husband. There is no reason to
fic-
tion that
person
husband and wife are one
with one
eyes
will in
They
They
the law.
are not.
are
separate
personality
individuals. Each has a distinct
and a
destroyed by any process
will which
not
spousal
separately
Each acts
fusion.
and should be
separately responsible for their conduct. We have so
recognized in other areas of the law. Women should
not
identity
lose their
responsibility
their
—or
—when
they become wives. The status of
wife
husband
person
relieve
obligation
of one’s
to
obey the
law.” Id. at
Cf. Dege, United States v. 364 U.S. 80 S.Ct. 4 L.Ed.2d (1960); 1563 States, Kivette v. United 230 F.2d (5th 749 1956); Cir. United Anthony, States v. 145 F. Supp. (M.D.Pa.1956) (and therein); cases cited Conyer v. States, (6th United 1936); F.2d 292 Cir. Commonwealth v. Zankl, 53 D. & C.2d Com- monwealth Gober, 35 D. & (1966).11 C.2d 709
Under the Pennsylvania new Code, Crimes “duress” is culpability defense to where: “ . (cid:127) (cid:127) engaged charged the actor in the conduct to constitute an offense . . . was coerced to do so of, use or threat use, unlawful force against person person his or the of another, which a person of reasonable firmness in his situation would Perkins, supra at 917-918. 6, 1972, Act of December
have been unable to resist.” Pa. effective June No. 309(a). C.S. § acting person under duress in fact a
If prior law, provides coercion, provision, as employ fiction no defense. can find reason We today. to abort so would be is without basis To do adjudica purposes truth and to basic subvert re process. Thus, trier for the of fact tive issue acting own Santiago of her solve was whether Sheila was being fact, whether, volition or she was coerced *11 participation in person any in her her husband or other of this activity. clear, the facts this It is under criminal testimony case, The indicat that role volitional. her was twenty-five out of packets of heroin ed that she threw attempt from this the in an conceal evidence window to police entering. was the first one the also who She attempted responded police and who to the knocks of the any delay in to The record is barren of their entrance. inspired of the dication acts were us result that these party. permit en To one direction and control of third gaged activity responsibili in criminal criminal to avoid ty by policy hiding no the serves behind marital bond only provides unjustifia opportunity the for one to bly punishment avoid for criminal acts. Superior vacating
The Order of the sentences Court remanding resentencing for to the Court of Common judgment Pleas is reversed. The of the trial sentence of court is reinstated and affirmed. J.,
ROBERTS, concurring opinion filed a in which J., joins. MANDERINO,
ROBERTS, (concurring). Justice join Opinion Court, I in the the ex but to desire my plain agreeing reasons with the Court’s construc 39(a) Drug, the Substance, tion of section Controlled Device, pro That section and Cosmetic Act of 1972.* pertinent part: vides in yet
“In case not if is similar final the offense ap- act, penalties set out in this act one this they ply if are less than those under law.” Superior provision to mean construed this that one convicted under to be sentenced the old act is provision under the act elements are new whose similar to the elements he con- of the crime of which was similarity to re- requirement victed. We construe the offense, fer to the conduct rather which constituted than elements the crime. adopting reasons for construction rather ably Court are stated chosen
Commonwealth its brief: leg- 39(a)] fact that the took account “[Section drug gravity islature had reassessed the various drafting 1972, upgrading offenses the Act of penalties offenses, penal- downgrading for certain Obviously, legislature for others. its ties wished application possi- as new wisdom have broad an ble, apply many e., possible to as i. cases as —not *12 only to which would arise after the effec- those cases pending also to those on tive date the new but legislature of the that date. This wish understandable fully of constitutional could be realized because prohibitions against penalty increasing for crime the a after its In as much its commission. order attain running objective afoul of as could without be achieved leg- proscription punishments, the post of ex facto way 39(a) by that wher- islature mandated of Section penalty had ever the defendant’s crime one whose was should Act, been reduced new the defendant policy. receive the benefit of the lenient Whether new * 780-139(a) April 39(a), (Supp.1974). pending benefit given case to be defendant in a depend leniency
ciary must therefore of the award by the defendant upon committed whether the acts legislature had determined were of a class the old punished severity than under with less of acts as convicted Act. For if the was defendant legislature sanc- to increase which the had chosen Act, upon that defendant tion in the new to bestow law punishment fixed lesser legisla- directly intent of the the new would contravene ture. ap- foregoing analysis,
“In accordance with the prosecu- determining pending propriate if means decide is to the new Act first tion is controlled the acts describes of the new Act best which section convict- he was by the for which committed defendant by the approach from that undertaken differs ed. upon conduct in that it focuses comparing la- opposed merely the defendant as assigned Acts. and new bels offenses the old it enhan- approach is that virtue of the recommended imposed will be punishment ces likelihood legislature’s current closely to the more correlated crime.” judgment gravity defendant’s to the concurring opinion. J., joins in MANDERINO,