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COMMONWEALTH PENNSYLVANIA v. GREGORY METZGER (03/31/77)

decided: March 31, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
GREGORY METZGER, APPELLANT



Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lancaster County at No. 1879 of 1975. NO. 1385 OCTOBER TERM, 1976.

COUNSEL

Edward F. Browne, Jr., Assistant Public Defender, Lancaster, for appellant.

Joseph C. Madenspacher, Assistant District Attorney, and D. Richard Eckman, District Attorney, Lancaster, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Van Der Voort

[ 247 Pa. Super. Page 228]

Appellant was convicted of violation of the Drug, Device and Cosmetic Act, April 14, 1972, P.L. 233, No. 64, 35 P.S. § 780-113(a)(30), by a jury on September 25, 1975.*fn1 On appeal, appellant raises only one issue. He maintains that the evidence was insufficient to establish that he participated in the delivery of the drugs thereby making him criminally liable under 35 P.S. § 780-113(a)(30). He argues that his action of merely being an errand boy, "conduit" as he refers to it, without receiving any pecuniary gain, in a sale consummated between two other people does not come within the definition or intent of the crime for which he was found guilty.

Briefly, the facts are that appellant was present in a house trailer on March 1, 1975 when an undercover narcotics agent employed by the Pennsylvania State Police and appellant's

[ 247 Pa. Super. Page 229]

    brother made a deal to purchase drugs.*fn2 Previously, an arrangement had been made between the narcotics agent and appellant's brother for the purchase of a large quantity of lysergic acid diethylamide (LSD) and the agent was at the trailer for the purposes of completing that transaction. However, this deal fell through due to complications involving the arrival of the LSD from York, Pennsylvania. In order to provide the agent with a sample of the type of drugs he would have purchased, appellant's brother offered to sell the agent a smaller quantity which he (appellant's brother) could procure from another individual who lived nearby. Appellant testified on direct examination that his brother told him to call this individual to see if he could supply them with five "hit" of LSD. He further testified that he called, found out he could buy the drugs, received ten dollars from his brother to purchase the drugs, drove out to the individual's home and picked up the "stuff", returned to his brother's trailer and gave the LSD to his brother who then sold it to the agent for ten dollars. On July 15, 1975, appellant and his co-defendant were arrested for criminal conspiracy and violation of the Drug, Device and Cosmetic Act.

The only issue presented is whether or not appellant's actions on March 1, 1975 amounted to a violation of the Drug, Device and Cosmetic Act, 35 P.S. § 780-113(a)(30). This issue is easily resolved by reading the Act. Section 780-113(a)(30) reads:

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited: (30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a

[ 247 Pa. Super. Page 230]

    practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to ...


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