Appeal from order of Court of Common Pleas of Monroe County, Oct. T., 1974, No. 41, in case of Commonwealth of Pennsylvania v. Chris Teada.
Joseph H. Reiter, Special Deputy Attorney General, with him Barnett Satinsky, Deputy Attorney General, and Robert P. Kane, Attorney General, for Commonwealth, appellant.
George W. Westervelt, Jr., with him George Royle, IV, and Cohen, Royle and Ticktin, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J. Dissenting Opinion by Price, J. Jacobs, J., joins in this dissenting opinion.
[ 235 Pa. Super. Page 440]
This is an appeal by the Commonwealth from a demurrer sustained by the Court of Common Pleas of Monroe County, Criminal Division. The defendant was charged with a violation of the Act of 1972, April 14, P.L. 233, No. 64; 35 P.S. § 780-113 (a) (30), a Section of The Controlled Substance, Drug, Device and Cosmetic Act.
The appellee, Chris Teada, was arrested on May 20, 1974 and charged with selling phencyclidine to a police undercover agent. The trial was held on October 8, 1974. At the trial the Commonwealth established that a substance sold to the undercover agent contained a quantity of phencyclidine hydrochloride. The Commonwealth's evidence failed to establish the amount of the proscribed substance contained in the material sold to the agent. Also there was no evidence that the quantity of the proscribed substance delivered would have a potential for abuse associated with a depressant effect on the central nervous system. It was for these failures that the court below sustained defendant's demurrer to the Commonwealth's case.
The section of the act under which appellee was charged provides as follows:
[ 235 Pa. Super. Page 441]
"(3) Schedule III -- In determining that a substance comes within this schedule, the secretary shall find: a potential for abuse less than the substances listed in Schedules I and II; well documented and currently accepted medical use in the United States; and abuse may lead to moderate or low physical dependence or high psychological dependence. The following classes of controlled substances are included in this schedule:
"(i) Any material, compound, mixture, or preparation unless specifically excepted or unless listed in another schedule which contains any quantity of the following substances having a potential for abuse associated with a depressant effect on the central nervous system:
"1. Any substance which contains any quantity of a derivative of barbituric acid, or any salt of a derivative of barbituric acid.