Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, Nov. T., 1973, No. 7306889A, in case of Commonwealth of Pennsylvania v. Joseph F. Stawinsky.
Charles W. Johns, Assistant District Attorney, with him Dennis Kissane and Robert L. Eberhardt, Assistant District Attorneys, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellant.
Stephen P. Swem, Assistant Public Defender, with him Henry C. Lamparski, Assistant Public Defender, and George H. Ross, Public Defender, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Concurring Opinion by Spaeth, J. Jacobs and Hoffman, JJ., join in this opinion.
[ 234 Pa. Super. Page 310]
Appeal is taken to this Court from the lower court's order sustaining appellee's demurrer to the evidence to the charge of selling drugs and discharging the appellee-defendant.
Appellee was arrested and charged with delivery of a controlled substance (phencylidine) to an officer of the Pennsylvania State Police Criminal Investigation team. Following indictment by the Grand Jury on three counts, to-wit, possession, possession with intent to deliver and delivery of controlled substances, in violation of Section 13 of The Controlled Substance, Drug, Device and Cosmetic Act,*fn1 appellee was held for trial. On February 19, 1974, at trial before Honorable John P. Flaherty, Jr., Judge, presiding without a jury, and following the Commonwealth's case, appellee demurred to the evidence on the ground that the Commonwealth had failed to prove that appellee was not registered with the Secretary of Health of the Commonwealth.*fn2 The demurrer was sustained, and the Commonwealth has appealed.
[ 234 Pa. Super. Page 311]
The question before the Court thus is whether as a part of its case the Commonwealth must prove that a defendant is not registered under the Act. The Act being designed to limit traffic in certain enumerated substances, the fact that one can so register and then be able to manufacture, distribute, retail, etc., makes that person exempt from the prohibitions of the Act. With this status of exemption at issue, direction must be focused to Section 21 of the Act*fn3 which provides as follows:
"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 recent case of Commonwealth v. Stoffan, 228 Pa. Superior Ct. 127, 323 A.2d 318 (1974), interpreted this provision. Therein Judge Spaeth, speaking for the Court, Judge Spaulding being absent, pointed out the "exemptions and exceptions" referred to in Section 21 of the Act must be taken to mean only those which do not state necessary elements of the crime proscribed, lest an unconstitutional result obtain. "If 'exemptions or exceptions' referred to clauses that stated necessary elements (of the crime) and § 21 operated to shift the burden of proof as to them onto the defendant, due process would be violated." Commonwealth v. Stoffan, supra, at 138. Further, we rely upon Commonwealth v. Neal, 78 Pa. Superior Ct. 216 (1922), in which our court said:
"'If an exception is material in arriving at the definition of the crime, it is generally held the State has the burden of showing the exception does not apply because it is then one of the essential elements of the offense. However, where the ...