Appeal from judgment of sentence of Court of Common Pleas of Chester County, May T., 1970, No. 289, in case of Commonwealth of Pennsylvania v. Dell Walker.
Harry W. Farmer, Assistant Public Defender, with him John R. Merrick, Defender, for appellant.
F. Ned Hand, Assistant District Attorney, with him William H. Lamb, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Watkins, J. Dissenting Opinion by Spaeth, J.
[ 226 Pa. Super. Page 150]
This is an appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Chester
[ 226 Pa. Super. Page 151]
County, by the defendant-appellant, Dell Walker, after conviction by a jury of violation of The Drug, Device and Cosmetic Act, 1961, September 26, P. L. 1664, 35 P.S. § 750, for possession of marijuana; and from the denial of post-conviction motions. The appellant was sentenced to pay a fine of $100.00 and the costs of prosecution.
The evidence of the Commonwealth disclosed that police officers executed a search warrant at the home occupied by the appellant and her children and found a pipe in a kitchen cupboard drawer which upon analysis revealed marijuana residue in a small amount. There was no demurrer to the Commonwealth evidence and the appellant took the stand. She told the jury that she knew of the pipe and had handled it, but was unaware of its contents. She testified that the pipe belonged to her brother who she said was baby-sitting for her on the day of the trial. She did not call him as a witness.
The appellant contends that the evidence was insufficient to support the verdict in that the Commonwealth failed to prove that the appellant knew or should have known that the contents of the pipe was marijuana.
In this case there is no question that the apartment searched was the apartment of the appellant and under her sole control; that she was present when the search was made; that she knew the pipe was in the drawer of the apartment and she had handled it. It was unusual and described as bamboo in appearance. As to the claim that the Commonwealth failed to prove and the court failed to require proof of the element of knowledge on the part of the appellant as to the content and nature of the residue in the pipe, we said in Commonwealth v. Yaple, 217 Pa. Superior Ct. 232, 273 A.2d 346 (1970), at page 241: "This claim (knowledge, as above) must also be rejected. A jury need not be instructed that in order to find the defendant guilty, proof must be offered of his actual knowledge as to possession of drugs.
[ 226 Pa. Super. Page 152]
Knowledge is not an essential element of this offense." However, the court below in its ...