*2 J., Argued 10, Before WATKINS, June P. Voort, Hoffman, Cercone, Price, Jacobs, der Van and JJ. Spaeth,
Joseph Special Reiter, Attorney General, H. Deputy him Attorney Barnett Satinsky, Deputy General, and Kane, Attorney Robert General, P. for Cоmmon- wealth, appellant.
George Westervelt, George Royle, W. with him Jr., IV, Cohen, Royle Ticktin, appellee.
Opinion by Watkins, J., September 22, P. 1975: appeal by This is an the Commonwealth from a de- murrer sustained Court Common Pleas County, Monroe Criminal The defendant was Division. *3 charged with 1972, April 14, a violation of the Act of 233, 64; P.L. (a) (30), No. P.S. a Section §780-113 The Substance, Drug, Controlled Device and Cosmetic Act. 20,
The appellee, Teada, May Chris was on arrested charged selling phencyclidine 1974 and police to a agent. 8, undercover The trial on was held October At the trial sub- Commonwealth established a agent quantity sold to the a stance undercover contained phencyclidine hydrochloride. The Commonwealth’s proscribed evidence failed to of the establish amount agent. substance contained sold material pro- quantity Also was no that the of the there evidence potential for scribed substance delivered abuse associated with a effect on the central system. It for these failures that the court was to the Common- below sustained defendant’s demurrer case. wealth’s appellee was act whiсh
The under section charged provides as follows:
“(3) determining1 Schedule III —In sub- stance comes within schedule, secretary this shall potential find: a for abuse less than the substances listed in II; Schedules I and well documented cur- rently accepted States; medical use in the United may аbuse physical depend- lead to moderate or low high psychological ence or dependence. following The classes of controlled substances are included schedule:
“(i) Any material, prep- cоmpound, mixture, or aration specifically excepted unless or unless listed in another quantity any schedule which contains following having abuse as- sociated with a the central nerv- system: ous Any any quantity
“1. substance which contains of a acid, derivative barbituric salt of a derivative of barbituric acid.
“2. Chorhexadol.
“3. Glutethimide. Lysergic
“4. acid. Lysergic
“5. acid amide. Methyprylon.
“6.
“7. PHENCYCLIDINE. Sulfondiethylmethane.
“8. Sulfonethylmethane.
“9. (Emphasis 1972, added) “10. Sulfonmethane.” supra. April 14, provide issue revolves around the words must have
that the in this section substance enumerated *4 depressant potential “a a effect abuse associated with system.” ar- on the central The Commonwealth nervous modify in the gues that these the word substance words serve purpose of is to as statute and that the these words placing guide Secretary in other sub- a to the of Health say that is to particular category, stances within this proscribed section must be any under this new substances potential a ones have associated with a abuse ap- depressant system. effect on the central nеrvous The pellee argues, held, and the lower court that the words question modify quantity in word clause above and therefore the Commonwealth has the of burden proving quan- that the substance sold contains a sufficient tity prosсribed one substances enumerated section, this so to on effect system. central nervous This the Commonwealth failed statutory to question do. Therefore, purely is one of enacting legislature construction. In this section did prohibit containing intend to sale all substances any quantity proscribed merely of the did it or substances prohibit intend containing to the sale of a substances quantity sufficient proscribed substance so as to a have system the central on ? question answer to this clear when we becomes Act, at supra, entirety. look in its Schedule Act, high lists those supra, substances which have a abuse accepted and no medical use such as heroin marijuana. рossession The sale or is these substances illegal regard quantity. without to Since these substances legitimate have no inquiry quantity use no into de- possessed livered necessary in order to establish its illegality. II of Schedule the Act thоse involves high potential, abuse but for which there is accepted an (i) (ii) medical Subsection of Sched- use. ule regard quantity. list II various substances without to However, (iii) stating subsection lists four substances quantity “po- of these substancеs must have tential for abuse associated with a on stimulant effect system.” the central nervous Furthérmore that subsection goes proscribe delivery to par- of one regard ticular substance, methamphetamine, without quantity. Obviously See, (2) (iii). 35 P.S. §780-104 it enacted this subsection because considered methamphetamine dangerous quantity to be more
443 than the other substances enumerated Schedule II. statutory scheme imposing greater is one of restrictiоns on dangerous the more imposing and of substances greater proof requirements prosecution on the as the inquiry criminal dangerous moves from the most sub- dangerous stances the least ones. mind,
With this when look of we at III the Schedule apparent Act it is legislature place that the did intend to quantitative proof requirements on the Commonwealth regard to the enumerated under subsec- substances (i) tion (Phencyclidine 2-10 list). is on number 7 the This becomes сlearer when we note Item that I of that section, acid, quanti- barbituric contains no such need for analysis. tative “any quantity” The reference to when mentioning legis- barbituric acid that demonstrates the quantitative requirement lаture intended the when prohibited delivery “any it the quantity” of specifically of prohibit, the substance that it wanted to is, legislature that specify barbituric acid. But did any quantity substance set forth in numbers through 2 proscribed. proscribed only possession 10 was It delivery “potential substances which have depressant abuse associated with a central effect system.” Thus, Commonwealth proving burden at trial (2-10) is (i) enumerated III Act Schedule depressant with a abuse associated system. on the central nervous (v> III reinforces Subsection Schedule also per- language requiring quantitative proof. That section exempt Secretary from control mits the of Health to compound containing enumerated subsec- substance ingredients (i) (ii) compound tion has other negate central nervous effect on the 1974). Thus, the system. (v) (Supp. §780-104 P.S. or de- prohibit possession of the is to intent quantity of the compounds containing a enumer- livery of potentially ated is sufficient to be abused substance system use as a central nervous prohibition no of—the when the substance intended quantity of the substance is to act as a de- insufficient pressant. legis- Since courts must assume *6 every lature intends word of a to statute have effect we ignore cannot (v) Subsection nor the of Schedule III wording (i) proscribes of specifically Schedule III delivery possession any the or of barbituric aсid in amount while specifically providing far so as the other 9 sub- stances set (2) forth in that 1 section. Pa. §1922 C.S. (Special 1973). To as the Pamphlet, hold Commonwealth wording would (i) contends render the of Schedule III (1) surplusage negate mere intent the clear legislature. recognize the principle Also we must the penal strictly against statutes must be construed (1) (Special (b) Commonwealth. Pa. C.S. §1928 Pamphlet, 1973). interpretations If two inconsistent statutory language reasоnable, are both the benefit of the doubt position. must inure .to defendant’s presented
In this case are not we with such a situation wording because the Act manifests intent of that certain substances must be present in quantities having effеct on system central delivery before their or delivery posses- Otherwise, sale, becomes criminal. many non-prescription drugs sion of common such as cough aspirin, anacin, syrups, etc., be the some could sub- ject рrosecution they of criminal contained minute even quantities of some of substances enumerated Sched- (i) (2-10) ule III Act.
Order affirmed. Dissenting Opinion Price, J.: Phencyclidine ability produce has the to hallucina- becoming “Angel tions known Street Congress Both the Dust.” United States and the Pennsylvania Legislature that because of its found hallucinatory eifect effect it and its has a legitimate use had been abuse. Its sole prepared by veterinary use, solution Parke and Davis has, according my research, but this been discontinued past years. Thus, accepted for the three or four it has no phencycli- medical use that I can In event, ascertain. by legislative mandate, dine in the beеn, has included Pennsylvania prohibited drug. Federal and statutes as a majority must I has dissent because believe language placed upon a strained construction the clear Substance, Drug, Pennsylvania the statute. The Controlled provides pertinent Device and Act1 sections Cosmetic as follows: Substances. of Controlled
“780-104—Schedules following sub- schedules include controlled. stances or to be listed.... listed, Any material, mixture,
(3) (i) compound, *7 preparation specifically excepted or unless listed unless any quantity of which contains in another schedule having potential for abuse following the a substances on the central effect associated with a system: nervous added) (emрhasis Phencyclidine.”
7. legisla- that the clear section, it seems As I read this phencyclidine and any quantity of control ture intended to potential for abuse associated “having phrase a that the system” the central with a history the supported legislative finding, ais prohibited in be should substance drug, that this which the word substance phrase modifies quantity. This only view, to my is, to it and immediately before appears 64, (35 P.S. 14, 233, §780- §1 P.L. No. April 1972, Act seq. 101) et guide Secretary placing
servе to the in of Health drugs new onto that schedule.
Any plain mean- other construction conflicts with the ing Pennsylvania majority construes statute. phrase modify “quantity” to the word which seems ordinary good me English to be Fur- violative of rules. majоrity places upon ther, the construction Common- every wealth, involving case language, burden establishing legislative finding anew the these potential depres- have a for substances abuse related to a sant system. requirе- effect on the central nervous Such legislative ment finding be to render the useless and destroy statutory if would, adopted, scheme. It trans- fer fact-finder, the control of these substances to the judge vesting whether jury, it be or rather than legislature. initial decision It would turn each legislative hearings trial prior into a rehash of the already heard and determined that these produce for It would no uniform- abuse. judge ity, jury each could reach a con- different, flicting would, It conclusion. substitute the adopted, judgment fact-finder’s for that of the require produce each case Commonwealth already accepted by same scientific data heard legislature. Clearly majority imple- then the does not legis- ment what conceive to the clear intent of the be perceive any danger sale, lature. do I de- Nor livery many non-prescription common drugs etc., aspirin, anacin, cough such аs some syrups, subject prosecution. At could be the of criminal least case, phencyclidine case of such is *8 accepted it am now no medical use of which I aware. has grant of reverse the the demurrer remand the case for trial. joins dissenting
JACOBS,J., opinion. in