Nos. 50 and 154 March Term, 1977, Appeal from Judgments of Sentence of the Court of Common Pleas, Criminal Division, of Dauphin County, at Nos. 747 and 748 C.D. 1975.
Arthur K. Dils, Harrisburg, for appellant.
Marion E. MacIntyre, Second Assistant District Attorney, Harrisburg, and LeRoy S. Zimmerman, District Attorney, Harrisburg, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman and Spaeth, JJ., concur in the result. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 255 Pa. Super. Page 262]
Appeal is taken from judgments of sentence rendered following jury trial and adjudications of guilt on two indictments charging that, on separate occasions, appellant violated "The Controlled Substance, Drug, Device and Cosmetic Act", by delivering a controlled substance, viz., heroin, (six bags thereof) on each occasion. Act of 1972, April 14, P.L. 233, § 13, 35 P.S. § 780-113(a)(30). Both appeals, although
[ 255 Pa. Super. Page 263]
separately numbered, involve the same allegations of trial error, and we have considered the appeals together, limiting our discussion herein to appellant's two assignments of error.
During jury selection, appellant requested twenty peremptory challenges. The lower court refused, pointing out that the proper number of such challenges to jurors in a case of this nature was eight. Appellant has preserved this argument for our consideration and now proposes that the crimes charged, being felonies for which the maximum imprisonment is fifteen years,*fn1 equate with crimes for which exclusive jurisdiction resided in the now-abolished courts of oyer and terminer. We disagree.
Prior to the abolition on January 1, 1969, of the courts of oyer and terminer and general jail delivery (O. & T.), and quarter sessions of the peace, pursuant to the Pennsylvania Constitution, Schedule, Article 5, § 4, those crimes over which O. & T. had exclusive jurisdiction were found in the Act of 1860, March 31, P.L. 427, 17 P.S. § 391. Drug offenses, as they may have been defined as crimes in the now-repealed "Drug, Device and Cosmetics Act", Act of 1961, Sept. 26, P.L. 1664, 35 P.S. § 780-1 et seq., and its forbears, were not under O. & T.'s exclusive jurisdiction. Rather these crimes were triable in the courts of quarter sessions, which had "jurisdiction in cases of fines, penalties or punishments, imposed by any act of assembly, for offenses, misdemeanors or delinquencies, except where it shall be otherwise expressly provided and enacted." Act of 1860, March 31, P.L. 427, 17 P.S. § 361(V). No provision in the "Drug, Device and Cosmetics Act", supra, provided otherwise. Thus we disagree with appellant's self-serving and unsupported conclusion that criminal acts violative of "The Controlled Substance, Drug, Device and Cosmetic Act", supra, which replaced the former drug act on June 14, 1972, approximately three years after abolition of both oyer and terminer and quarter sessions, equate with crimes tried in O. & T.
[ 255 Pa. Super. Page 264]
So concluding, we look to the Act of 1901, March 6, P.L. 16, 19 P.S. § 811, to find that Commonwealth and defendant are each entitled to eight peremptory challenges in the trials of felonies not exclusively under the jurisdiction of O. & T. If the crime charged was exclusively under the jurisdiction of O. & T., then the number of such challenges was increased to twenty. Again we reiterate our conclusion that drug violations of the instant type were to be brought before the courts of quarter sessions when they were extant. The numbers of allowed peremptory challenges in criminal cases remained the same after the January 1, 1969, consolidation of courts under one court of common pleas in each district, pursuant to Pa.R.Crim.P.Rule 1126.*fn2 Consequently the number of peremptory challenges available to our appellant, at his trial on October 6, 1975, for violation of "The Controlled Substance, Drug, Device and Cosmetic Act", supra, was eight. The lower court did not err in so holding.
Secondly, appellant alleges that a certain answer of Commonwealth witness Norvil Ulrich of the Harrisburg Police Department, given during cross-examination by appellant's counsel, so prejudiced the jury ...