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decided: October 28, 1975.


Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Dec. T., 1971, No. 8186, in case of Commonwealth of Pennsylvania v. Izear Hill and Fred Hill.


Allen N. Brunwasser, for appellants.

Louis R. Paulick, Assistant District Attorney, with him Robert L. Eberhardt, Assistant District Attorney, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P.j. Dissenting Opinion by Hoffman, J. Cercone, J., joins in this dissenting opinion. Dissenting Opinion by Spaeth, J.

Author: Watkins

[ 236 Pa. Super. Page 573]

This is an appeal from the judgment of sentence, Criminal Division of the Court of Common Pleas of Allegheny County by the defendants-appellants, Izear Hill and Fred Hill, after conviction by a jury of possession of and trafficking in heroin and cocaine; and from the denial of post-trial motions.

On August 19, 1971, three detectives, armed with search warrants for the persons of each of the defendants, for the residence at 250 Sebring Avenue, Pittsburgh, Pennsylvania, and for a 1969 Oldsmobile which belonged to the defendant Izear Hill, rang the doorbell to the residence at 250 Sebring Avenue and received no answer although the lights were on inside the premises. The

[ 236 Pa. Super. Page 574]

    officers then set up a surveillance of the premises two doors away. About one-half hour later, the defendants were seen leaving the residence and approaching the 1969 Oldsmobile which was parked in front of the residence. After observing the defendants, the detectives approached them, identified themselves as detectives, and informed the defendants of the search warrants. Izear Hill then tried to conceal a brown bag that he was carrying under some articles in the trunk of the vehicle. One of the officers grabbed Izear Hill and took the bag from him. In so doing a brown bottle, later found to contain quinine, a substance often used in cutting heroin, fell to the ground. Both defendants then began to struggle with the officers and during the course of the struggle another package, carried by defendant Fred Hill, fell to the ground. The bag carried by Izear Hill contained 45 "half-spoon" packets of heroin in glassine bags and 11 packets of cocaine in glassine bags. The brown paper bag carried by Fred Hill was found to contain 15 "half-spoon" packets of heroin in glassine bags.

Testimony at trial established that a "half-spoon" of heroin consists of about 5 grams of the substance and sells for $25.00 on the street. The subsequent search of the residence revealed seven measuring spoons containing a white powder and two brown boxes containing a large amount of glassine bags. The Oldsmobile contained no contraband. A total of $721.00 in currency was also found on the persons of the defendants.

The defendants raise eight issues in their brief alleging various errors by the trial court. Several of the eight allegations actually deal with only one issue, that being whether the evidence produced at trial was sufficient to convict the defendants of trafficking in proscribed substances in violation of the Act of September 26, 1961, P.L. 1664, Section 4(q), 35 P.S. ยง 780-4 (q). The above Act prohibits "the possession, control, dealing in, dispensing, selling, delivery, distribution, prescription, trafficking

[ 236 Pa. Super. Page 575]

    in, or giving of, any dangerous or narcotic drug." Both heroin and cocaine fall into this category. It is the appellants' position, however, that the Commonwealth failed to establish that the appellants trafficked in drugs because no evidence of any specific sale or attempted sale was introduced at the trial. In so arguing the appellants would have us interpret the word "trafficking" in the statute as being synonymous with the word "selling." Webster's International Dictionary, Third Edition, defines "traffic" as follows: "a. to engage in commercial activity. . . . b. to engage in illegal or disreputable business or activity." Thus, it is clear that the word "traffic" is much broader than the word "sale" and that a person could be engaged in the trafficking of a substance without being the one who actually sells a substance. We must note that the legislature in enacting the section chose to include both the words "trafficking" and "selling" in its enumeration of proscribed activities. Since we have established that the words are not synonymous it is logical to conclude that "trafficking" in drugs can be accomplished by a defendant even though he has never made a "sale." A statute must be construed to give effect to all of its language. Whitemarsh Twp. Auth. v. Elwert, 413 Pa. 329, 196 A.2d 843 (1964). The legislature is also presumed not to have intended provisions in its laws as mere surplusage which would obviously be the case if the words "sale" or "trafficking" were held to be synonymous. See, Daly v. Hemphill, 411 Pa. 263, 191 A.2d 835 (1963) and Commonwealth v. Bostick, 34 Leh. L.J. 539 (1972). In light of both logic and the rules of statutory construction it is therefore clear that "trafficking" and "selling" dangerous drugs are separate proscribed activities.

Turning to the facts of our case it is also clear that sufficient evidence was produced at trial so as to enable the jury to convict on the charge of "trafficking." Both defendants were found with substantial ...

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