COMMONWEALTH оf Pennsylvania v. Eugene SOJOURNER, Appellant.
Superior Court of Pennsylvania.
June 22, 1979.
408 A.2d 1108
Argued Sept. 15, 1978.
I would affirm the judgment of sentence.
JACOBS, President Judge, joins in this dissenting opinion.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Gerald Gornish, Acting Attorney General, Harrisburg, filed an amicus curiae brief in support of the appellee.
Pennsylvania District Attorneys’ Association submitted an amicus curiae brief in for form of a letter in support of the appellee.
Before JACOBS, President Judge, and CERCONE, PRICE, VAN der VOORT, SPAETH and HESTER, JJ.
CERCONE, President Judge:
The instant appeal arises from appellant‘s conviction following a jury trial of violating the Controlled Substance, Drug, Device and Cosmetic Act (CSDDCA),
On the night of December 12, 1975, at approximately 9:20 P.M., Highway Patrol Officer Steven Girard and his partner, Donald Guy, were patrolling Philadelphia on their motorcycles when they observed a 1966 station wagon being operated without tail lights or brakelights. The officers signalled the driver of the vehicle, Eugene Sojourner, to pull over, which he did. However, as soon as he brought the car to a halt, Sojourner alighted the vehicle and began to walk away. When the officers ordered him to halt, he began to run. Officer Girard pursued appellant for several blocks, and during the chase he observed appellant discard two foil-wrapped bundles. Several blocks later Officer Girard apprehended appellant and, upon subsequently returning to the place where appellant had discarded the two bundles, discovered that fifty individually wrapped packets inside the two bundles contained a substance which he suspected, and chemical analysis subsequently confirmed, to be heroin.
Appellant contends the trial court erred in charging the jury that the Commonwealth‘s burden of proving beyond a reasonable doubt that appellant was not authorized, licensed or registered under the CSDDCA to possess heroin could be inferred from appellant‘s flight and his discarding the two bundles containing heroin. The Commonwealth answers that this charge was indeed erroneous, but only in a fashion harmful to the Commonwealth, because the charge ignored our decision in Commonwealth v. Stawinsky, 234 Pa.Super. 308, 339 A.2d 91 (1975), which held that the burden of proving “authorization” 1 by a preponderance of the evidence
--A--
The Commonwealth charged appellant with violating sections 113(a)(16) and (30) of the CSDDCA2 which provide:
“Prohibited Acts; Penalties.
(a) The following acts and the causing thereof within the Commonwealth arе hereby prohibited:
. . . .
(16) Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act.
. . . .
(30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.”
Of contraband, the Supreme Court stated in Warden v. Hayden, 387 U.S. 294, 306, n. 11, 87 S.Ct. 1642, 1650, 18 L.Ed.2d 782 (1967):
“[C]ontraband is indeed property in which the Government holds a superior interest, but only because the Government decides to vest such interest in itself. And while there may be limits to what may be declared contraband, the concept is hardly more than a form through which the Government seeks to prevent and deter crime.”
[Emphasis added.] See also Commonwealth v. One 1958 Plymouth Sedan, 414 Pa. 540, 543, 201 A.2d 427 (1964). Thus, for our purposes it may be stated that in Pennsylvania possession of what the CSDDCA defines as contraband is the crime which “the Government seeks to prevent and deter.” The CSDDCA, however, defines contraband in a fashion manifestly inconsistent with the essence of the Commonwealth‘s argument that mere possession of a controlled substance is the сrime the CSDDCA seeks to prevent and deter. Section 102 of the act,3 provides:
“‘Contraband’ means any controlled substance, other drug, device or cosmetic possessed by a person not autho-
Second, the Commonwealth‘s argument offends against a basic and well-established rule of construction of criminal statutes. This court wrote in Commonwealth v. Neal, 78 Pa.Super. 216, 219 (1922), and recently reiterated with approval in Commonwealth v. Stoffan, 228 Pa.Super. 127, 140, 323 A.2d 318, 324 (1974):
“When a statute defining an offense contains an exception, in the enacting clause, which is so incorporated with the language defining the offense that the ingredients of the offense cannot be accurately and clearly described if the exception is omitted, the rules of good pleading require that an indictment founded upon the statute must allege enough to show that the accused is not within the exception, but if the language of the clause defining the offense is so entirely separable from the exception that the ingredients constituting the offense may be accurately and clearly defined without any reference to the exception, the pleader may safely omit any such reference, as the matter contained in the exception is matter of defense and must be shown by the accused.”
Since it is a generally accepted rule that a party must prove what he is obliged to plead,4 it follows that the Commonwealth must prove exceptions in the enacting clauses of Section 113(a)(16) and (30) which are so incorporated within them that the ingredients of the offense cannot otherwise be accurately described. Even aside from the fashion in which the act defines contraband, the kinds of authorization to possess controlled substances are so intertwined in the Section 113(a)(16) and (30) that any attempt to exercise them from the definition of the crime is purely arbitrary, or at
Third, the Commonwealth argues that construing the offenses delineated in the various subsections of Section 113(a) of the CSDDCA as requiring the Commonwealth to prove non-authorization renders Section 121 of the act useless.7 Again, we disagree. Section 121 provides:
“In any prosecution under this act, it shall not be necessary to negate any of the exemptions or exceptions of this act in any complaint, information or trial. The burden of proof of such exemption or exception shall be upon the person claiming it.”
The Commonwealth аssumes that burden of proof as used in this Section means burden of persuasion; however, as we
“A controlled substance, other drug or device or cosmetic shall be deemed to be misbranded:
. . . .
(6) Unless its labeling bears (i) adequate directions for use . . .” [Emphasis added.]11
If the Cоmmonwealth‘s argument were to prevail, selling lipstick would be an offense, although it would be a defense provable by a preponderance of the evidence to show that the lipstick was properly branded. This patently absurd result would not only be unconstitutional under the “sinister
The consequence of the foregoing analysis is that rather than authorization to possess a controlled being a justification or excuse which the defendant need prove by a prеponderance of the evidence, “non-authorization” is an element of the offenses described in Section 113(a)(16) and (30) which the Commonwealth has the burden of proving beyond a reasonable doubt. The next question is whether the Commonwealth has the burden of proving “non-authorization” beyond a reasonable doubt in every case; that is, stated conversely, whether we should allocate to the defendant the burden of coming forward with some evidence of authorization sufficient to activate the risk of nonpersuasion for the Commonwealth in a particular case. The Commonwealth has suggested this as an alternative argument in this case, and, for the reasons which follow, we find it to be an eminently superior one.
-B-
We are inclined to agree with the Commonwealth that the CSDDCA would be virtually unenforceable if the Commonwealth were obliged to disprove, in every case, every potential type of authorization to possess controlled substances which the CSDDCA recognizes. With respect to “practitioners”12 alone, the Commonwealth would be required to offer proof of non-authorization from as many as eleven different licensing boards of agencies. If drug manufacturers,13 sales-
Under the well-known principles of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), the Commonwealth has the burden of proving every element of a criminal offense beyond a reasonable doubt. See also Commonwealth v. McNeil, infra. However, more recently, in Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) the Supreme Court decided that the burden of going forward with evidence of all the elements of a criminal offense need not rest on the Commonwealth from the outset. While the majority and the dissent in Patterson disputed the appropriate limits of the doctrine of Mullaney v. Wilbur, both the majority opinion by Mr. Justice White17 and the dissenting opinion authored by Mr. Justice Powell18 expressly approved the Model Penal Code‘s provisions for allocating to the defendant the burden of producing some evidence concerning “elemеnts” of a particular offense.19 Mr. Justice Powell wrote in dissenting:
“Furthermore, as we indicated in Mullaney . . . even as to those factors upon which the prosecution must bear the burden of persuasion, the State retains an important procedural device to avoid jury confusion and prevent the prosecution from being unduly hampered. The State normally may shift to the defendant the burden of production, that is, the burden of going forward with sufficient evidence ‘to justify [a reasonable] doubt upon the issue.’ . . . If the defendant‘s evidence does not cross this threshold, the issue-[whether it be] malice, extreme emotional disturbance, self-defense, or whatever-will not be submitted to the jury.” Patterson v. New York, 432 U.S. at 230-31, 97 S.Ct. at 2338.
The application of this procedural device to prosecutions under the CSDDCA is particularly appropriate. First, the A.L.I.‘s Mоdel Penal Code § 1.13 (Tent. Draft # 4, 1958), to which the Supreme Court referred approvingly in Patterson v. New York, contemplates the use of this device in precisely such circumstances as the CSDDCA provides:
“(1) No person may be convicted of an offense unless each element of such offense is proved beyond a reasonable doubt.
(2) Paragraph (1) of this section does not:
(a) require the disproof of an affirmative defense unless and until there is evidence supporting such defense.
(3) A ground of defense is affirmative, within the intendment of paragraph (2)(a) of this section, when:
. . . .
(d) it involves a matter of excuse or justification peculiarly within the knowledge of the defendant on which he can fairly be required to adduce supporting evidence.”
Similarly, as Professor McCormick has written, when exceрtions are numerous, “fairness usually requires that the adversary give notice of the particular exception upon which
p. 118 (Tent. Draft # 4, 1958) refer. In this sense, a fact which “negatives an excuse or justification for such [forbidden] conduct” is an element of the offense.
“The percentage of heroin defendants who can make a plausible claim of registration is undoubtedly so low that it would be a substantial waste of resources to require the Government to prove non-registration in every case. It would be readily within the defendant‘s knowledge whether he had obtained an annual registration . . . so that he could be fairly expected to adduce such proof.”25
As Professor McCormick wrote more than a decade ago, the burden of production is “a critical and important mechanism in a jury trial . . . this mechanism has far more influence upon the final outcome of cases than does the burden of persuasion. . . .”26 Thus, by requiring the accused to come forward with some evidence of authorization before the Commonwealth need disprove authorization beyond a reasonable doubt, three different and important goals are achieved: (1) The constitutional rights of the accused are protected; (2) Enforcement of the act is not seriously hampered; (3) The CSDDCA conforms with the growing majority of jurisdictions which have interpreted virtually identical provisions in this fashion.
-C-
There remain, however, two loose ends as it were which we have postponed rationalizing for the sake of analytical convenience. First, there is the matter of Commonwealth v. Stawinsky, 234 Pa.Super. 308, 339 A.2d 91 (1975), wherein this court decided that the “burden of proving” authorization lay with the accused. The Commonwealth correctly asserts that our following Stawinsky today would obviate the necessity for the foregoing, admittedly lengthy rationale.
Commonwealth v. Stawinsky, 234 Pa.Super. 308, 339 A.2d 91 (1975) afforded us the first opportunity to construe these particular sections of the CSDDCA with regard to the Commonwealth‘s burden of proving non-authorization. In Stawinsky the Commonwealth proved in its case-in-chief at
A thoughtful consideration of Stawinsky reveals that its conclusion, for understandable reasons, was not the product of a thorough review of the entire fabric of the CSDDCA and the role of sections 13(a)(16) and (30) in effecting its purpose; rather, the conclusion that non-registration or non-authorization were not elements of the offenses of sections 13(a)(16) and (30) was a product of necessity. In re Winship, supra, had already determined that the state has the burden of proving every element of a criminal offense beyond a reasonable doubt. See also Commonwealth v. Stoffan, supra. Implicit in Winship was the concept that, if the state defined a certain fact as being an element of an offense, it could not constitutionally require the defendant to disprove it by a preponderance of the evidence. See Commonwealth v. Stoffan, supra. Indeed, less than two months after we decided Stawinsky, the United States Supreme Court made this very point explicitly in Mullaney v. Wilbur, supra. Just as we have indicated today, Section 121 when liberally construed would clash with the constitutionаl requirements of Winship if we construed the lack of authorization (viz. exemptions and exceptions) as elements of an offense under the CSDDCA, yet required the accused to prove authorization by a preponderance of the evidence. More importantly, however, the route we have taken today did not appear open to us when Stawinsky was decided. Before Patterson v. New York, supra, came down, our Supreme Court had opined, in a scholarly opinion on the nature and effect of inferences and presumptions authored by Justice Pomeroy, that any procedural device which permitted the Commonwealth to make out its case-in-chief without proof of an
The remaining “loose end” is Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975) upon which much of appellant‘s argument is based. Appellant contends that the rationale of McNeil compels us to conclude that the Commonwealth has the burden of going forward with evidence оf non-authorization as well as the burden of persuasion in every case. We disagree. Appellant supposes McNeil altered the law to a greater degree than the decision in that case warrants. In McNeil our Supreme Court determined that Winship required the Commonwealth prove non-licensure to carry a firearm beyond a reasonable doubt. In so holding the Supreme Court stated that: “The structure of the statute and the nature of the prohibition convince us that the absence of a license is an essential element of the crime.” Commonwealth v. McNeil, 461 Pa. at 715, 337 A.2d at 843. Appellant contends that the similarity of non-licensure under the firearms act,35 and non-authorization under the CSDDCA is so strong that McNeil pro tanto forbids our placing the burden of going forward with evidence of authorization on him. While it is true McNeil overturned a conviction for violating the firearms act despite the lack of any evidence to support an inference of license, we find that appellant‘s reading of McNeil is too broad for several reasons.
First, unlike Stawinsky, McNeil was not a case of first impression concerning the proper construction to give the firearms statute. Decisions of the courts of this Commonwealth had established years prior to Winship and McNeil
Second, while it is true that the Supreme Court in McNeil eschewed the use of any procedural device for placing the burden of production or going forward with evidence of license on the defendant, there was not the compelling necessity for doing so under the Uniform Firearms Act which the CSDDCA imposes. The Uniform Firearms Act,
Since we have concluded that the issue of appellant‘s authorization had not been supported by any evidence in the case, the court was not required to submit that issue to the jury. Consequently, the court‘s charge that the jury could infer non-authorization from appellant‘s flight and discarding the heroin was not prejudicial to appellant.37
On reargument, the decision of July 28, 1978 is affirmed as modified.
SPAETH, J., files a concurring opinion.
PRICE, J., files a dissenting opinion.
JACOBS, former President Judge, did not participate in the consideration or decision of this case.
SPAETH, Judge, concurring:
I agree with the majority‘s solution to the issue of the burden of proving nonlicensure under the drug act. That said, I submit that the terminology in this area of the law is confusing, and that the majority‘s opinion does little to resolve the confusion.
The majority opinion concludes-correctly, I believe-that nonlicensure is an element of the offense. Thus there is no question that under Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), the Commonwealth was required to prove nonlicensure beyond a reasonable doubt. I
In answering this question, the majority relies on Patterson. But Patterson is an “affirmative defense case,” not an “element of the crime case.” Moreover, the majority misreads Patterson. The Court there did not hold that “the burden of going forward with the evidence of all the elements of a criminal offense need not rest on the Commonwealth from the outset.” Majority op. at 1113. Rather, the Court was mainly concerned with the burden of persuasion, not with the burden of production. It held that a state could label something an affirmative defense and then require a defendant to prove the defense by a preponderance of the evidence. The Court said that the Constitution does not require a state to disprove an affirmative defense beyond a reasonable doubt-although the majority opinion acknowledged that “as a matter of policy” (emphasis supplied), the Model Penal Code would require the state to disprove “most affirmative defenses.” Id., 432 U.S. at 209, n. 11, 97 S.Ct. 2319.
The majority also relies on the Model Penal Code. I cannot myself get any guidance from the Code. Under it, it appears, nonlicensure would be labelled an affirmative defense, see § 1.13(3)(d), or possibly an “element“--but not a “material element“--of the offense, see § 1.14(9)(c) & comment at 118. If anyone can find his way out of that thicket, I ask him to lend me his compass.
The important point is that the Commonwealth has the burden of proving nonlicensure beyond a reasonable doubt. Beyond that, I should dispense with labels and simply hold that even though the Commonwealth must always prove the elements of a crime beyond a reasonable doubt, sometimes,
No single principle can be conscripted to explain when these shifts of burden to defendants are defensible, even if the burden goes no further than to call for the production of some evidence. Neither the logical point that the prosecutiоn would be called upon to prove a negative, nor the grammatical point that the defense rests on an exception or proviso divorced from the definition of the crime is potently persuasive, although both points have been invoked. See e. g. Rossi v. United States, 289 U.S. 89 [53 S.Ct. 532, 77 L.Ed. 1051] (1933); United States v. Fleischman, 339 U.S. 349, 360-363 [, 70 S.Ct. 739, 94 L.Ed. 906] (1950); State v. McLean, 157 Minn. 359 [196 N.W. 278] (1923). What is involved seems rather a more subtle balance which acknowledges that a defendant ought not be required to defend until some solid substance is presented to support the accusation but, beyond this, perceives a point where need for narrowing the issues, coupled with the relative accessibility of evidence to the defendant, warrants calling upon him to present his defensive claim. No doubt this point is reached more quickly if, given the facts the prosеcution must establish, the normal probabilities are against the defense, but this is hardly an essential factor. Given the mere fact of an intentional homicide, no one can estimate the probability that it was or was not committed in self-defense. The point is rather than purposeful homicide is an event of such gravity to society, and the basis for a claim of self-defense is so
specially within the cognizance of the defendant, that it is fair to call on him to offer evidence if the defense is claimed. This is in essence the classic analysis by Justice Cardozo in Morrison v. California, 291 U.S. 82, 88-90 [, 54 S.Ct. 281, 78 L.Ed. 664] (1934), although the statute there involved seemingly also shifted burden of persuasion. See also Williams v. United States, [78 U.S.App.D.C. 147] 138 F.2d 81 (D.C.Cir. 1943) (justification for abortion). So long as this criterion is satisfied, it is submitted that no constitutional objectiоn is presented, though language in Tot v. United States, 319 U.S. 463, 469 [, 63 S.Ct. 1241, 87 L.Ed. 504] (1943), but not the decision, must be distinguished.
Model Penal Code, Comments, § 1.13 at 110 (Tent. Draft # 4, 1955).
PRICE, Judge, dissenting:
It is unfortunate that I was unable to participate in the original argument in this appeal, wherein the majority of the judges then participating, by a 3-2 vote, adopted Judge Spaeth‘s opinion granting a new trial. After reargument it has been decided that under the order granting reconsideration and a second argument, I may not now participate in changing that result but may only participate in the decision on the licensure question. Although I disagree with that decision barring my participation in full reconsideration, I shall abide by it.
I agree and join Judge Cercone‘s opinion as to the licensure question.
I dissent and protest the grant of a new trial to this appellant on the grоunds that the trial court erred in failing to take adequate precautions to guard against the prejudicial potential concerning alleged prosecutorial misconduct. Such a conclusion is not legally sound and is procedurally ridiculous. This is particularly true where a clear majority of our Court participating in the reargument agrees that no error occurred.
I would affirm the judgment of sentence.