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decided: October 20, 1976.



John J. Hickton, Dist. Atty., Charles W. Johns, Robert L. Campbell, Robert L. Eberhardt, Asst. Dist. Attys., Pittsburgh, for appellant.

Thomas A. Livingston, Dennis J. Clark, Pittsburgh, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case. Manderino, J., filed a dissenting opinion.

Author: Nix

[ 469 Pa. Page 225]


On March 13, 1972, appellee Frank McKetta was tried before a jury in the Court of Common Pleas, Allegheny County for possession of dangerous drugs and dealing in dangerous drugs, in violation of the Drug, Device and Cosmetic Act, Act of September 26, 1961, P.L. 1664, 35 P.S. § 780-1 et seq., (now repealed, Act of April 14, 1972, P.L. 233, No. 64, § 43, 35 P.S. § 780-101 et seq.).*fn1 The specific drug with which appellee was charged with possessing and dispensing was the substance known as Ritalin. During the course of the trial, the question arose as to whether Ritalin was in fact a "dangerous drug" within the meaning of the statute. After hearing testimony outside the presence of the jury, the trial court ruled as a matter of law, that Ritalin did fall within the statutory definition of a dangerous drug and so instructed the jury during the charge. Thereafter, a verdict of guilty was returned on these counts.

Following argument on post-trial motions the trial court granted appellee's motion for a new trial. The assigned reason for this action was that the trial judge believed he had committed error by failing to allow the jury to determine whether the substance in question was a dangerous drug under the Act, supra. The ruling was appealed by the Commonwealth to the Superior Court, which affirmed the order per curiam. Commonwealth v. McKetta, 231 Pa. Super. 770, 331 A.2d 539 (1975). This court granted the Commonwealth's request for review and this appeal followed.

The trial court framed the issue as a challenge to the charge. In its view the charge was in error in that it did not instruct the jurors of their responsibility to decide

[ 469 Pa. Page 226]

    the question of whether Ritalin was, in fact, a "dangerous drug" within the meaning of the Pennsylvania Drug, Device and Cosmetic Act, supra. This would appear at first blush to present a problem since neither the defense nor the Commonwealth filed exceptions to the charge as given. We must consider, therefore, whether the matter was an appropriate subject for consideration on post-trial motions. Our cases have made it clear that trial judges should not consider challenges to a charge where the provisions of Pennsylvania Rule of Criminal Procedure 1119(b) have been ignored. Commonwealth v. Branham, 467 Pa. 605, 359 A.2d 766 (1976); Commonwealth v. O'Searo, 466 Pa. 224, 352 A.2d 30 (1976); Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975); Commonwealth v. Waltington, 452 Pa. 524, 306 A.2d 892 (1974); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).*fn2

Nevertheless, we are of the view under the instant facts that the issue was properly preserved and that the trial court was correct in addressing this question on post-trial motions. At the conclusion of the hearing, during which the jury had been excluded, the court stated its finding that Ritalin was a "dangerous drug" and that the Commonwealth was not required to offer testimony before the jury on this subject. An exception to this ruling was properly noted for the record. It is this properly preserved objection and not an omission in the charge which in fact forms the basis of the instant challenge.

[ 469 Pa. Page 227]

Turning next to the merits of the issue we acknowledge that appellee and the trial court are undoubtedly correct in their assertion that an issue of fact must be resolved by the jury and that a court cannot intrude upon this function. Schaefer v. United States, 251 U.S. 466, 40 S.Ct. 259, 64 L.Ed. 360 (1920); General Electric Credit Corporation v. Aetna Casualty & Surety Co., 437 Pa. 463, 480, n. 21, 263 A.2d 448, 458, n. 21 (1970). It is equally axiomatic that questions of law are for the court to decide and not the jury. Schofield Discipline Case, 362 Pa. 201, 218-219, 66 A.2d 675, 683 (1949). Our difference with the result reached by the court below stems from our belief that the question presented was one of law and therefore solely within the province of the court to resolve.

A distinction must be recognized between a challenge to the identity of a substance and where the identity is known and its classification is at issue. The former has traditionally been recognized as a factual dispute and its resolution has been left to the trier of fact. Commonwealth v. Martin, 186 Pa. Super. 412, 415-416, 142 A.2d 467, 468 (1958); Commonwealth v. Aikens, 179 Pa. Super. 501, 505, 118 A.2d 205, 207 (1955); Commonwealth v. Bozzi, 169 Pa. Super. 206, 209, 82 A.2d 303, 305 (1951); Commonwealth v. Rupert, 101 Pa. Super. 126, 129 (1930); Commonwealth v. Retacco, 82 Pa. Super. 79, 80 (1923). In such cases, the Commonwealth clearly has the burden of establishing by expert testimony or otherwise that the substance in question was in fact the substance charged. Here, however, the identity of the substance is not in dispute. The brand name of the drug is Ritalin and its generic name is Methylphenidate Hydrochloride. Unlike a challenge to the identity of a substance, which is simply a question of whether or not it is a particular substance, we are here called upon to ascertain the intent of the legislature. Statutory interpretation has been traditionally a function of the court and

[ 469 Pa. Page 228]

    not the jury. United States v. Lanni, 466 F.2d 1102 (3rd Cir. 1972).

This consideration alone is more than sufficient to support a finding that the question raised was one of law and not of fact. However, the conclusion is further strengthened in this particular case because another judicial function is also called into play in the resolution of the question.

The pertinent section provides inter alia as a definition of the term "dangerous drug":

"a drug other than a narcotic drug as defined in paragraph (g) of this section, which . . . (4) . . . is limited under the Federal Act to use under the professional supervision of a practitioner licensed ...

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