No. 2387 October Term 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Phila. County, as of No. 2320, Jan. Term 1976.
David Rudovsky, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, with him F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., filed a dissenting opinion in which Jacobs, President Judge, joins. Watkins, former President Judge, and Price, J., did not participate in the consideration or decision of this case.
[ 268 Pa. Super. Page 475]
Appellant was convicted of violations of the Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64, § 13(a)(16) and (30), as amended, 35 P.S. § 780-113(a)(16) and (30). He makes four arguments for a new trial: (1) his motion to suppress evidence should have been granted; (2) the Commonwealth failed to prove intent to deliver; (3) the trial judge erred in charging the jury; and (4) the trial judge responded inadequately to prosecutorial misconduct. We reverse the conviction on the basis of the last argument.
On the night of December 12, 1975, two Philadelphia motorcycle police officers saw a car being driven by appellant without tail lights. The officers signaled appellant to pull over. Appellant pulled over and got out of his car but as the officers were alighting from their motorcycles, he walked away. When Officer Steven Girard called out to him, appellant began to run toward a quadrangle of apartment houses. Girard, on his motorcycle, gave chase. During the chase, from a distance of about 50 feet, Girard saw appellant throw something to the ground. After a chase of several blocks, Girard caught appellant and found the car keys in appellant's hand and the owner's card in his pocket; appellant had no driver's license. When Girard's fellow officer arrived, the two officers returned to the spot where Girard had seen appellant throw something, and found two foil packets, each containing 25 small glassine bags of what later proved to be heroin.
[ 268 Pa. Super. Page 476]
Appellant argues that his action of throwing away the heroin was a "forced abandonment," Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973), because the officers had no probable cause to arrest him, and therefore should not have chased him.
For purposes of discussion we may agree with appellant that the officers had no probable cause to arrest him; it does not follow that they should not have chased him. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court held that a police officer suspecting criminal activity is justified in making a brief investigatory stop of someone when the officer can point to "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion," id. at 21, 88 S.Ct. at 1880. In Commonwealth v. Hayes, 237 Pa. Super. 510, 352 A.2d 121 (1975), this court held that police officers were justified in stopping two persons while checking to see whether there had been a burglary in a building the two persons had been seen leaving with boxes, a television set, and a portable typewriter. Here, having seen appellant driving without tail lights the officers were justified in stopping appellant to ask for identification and data on his car. The Vehicle Code, Act of July 16, 1970, P.L. 487, No. 166, § 1, 75 P.S. § 1221; currently, Act of June 17, 1976, P.L. 162, Act No. 81, as amended, eff. July 1, 1977, 75 Pa.C.S.A. § 6308. The officers could assume that appellant knew what they were about to ask him for. When appellant ran away, the officers had reason to suspect that something more than a routine traffic violation had occurred, for example, that the car was stolen. Officer Girard was therefore justified in chasing appellant; that was the only way he would be able to make a brief investigatory stop of appellant. We do not have to decide whether upon catching appellant, the officers were justified in ultimately arresting him, for appellant's action of throwing away the heroin was not a "fruit" of the arrest but of the lawful pursuit. Jeffries is distinguishable. There the suspect had done nothing unlawful or suspicious to justify a police pursuit; he had
[ 268 Pa. Super. Page 477]
merely quickened his pace as the police observed him from their vehicle.
We find no merit in appellant's argument that the Commonwealth failed to prove intent to deliver. An officer with considerable experience as an undercover agent testified that a person who had "two bundles, 50 bags" "more than likely [had them] for sale." N.T. 82. This was sufficient to permit the jury to infer intent to deliver. See Commonwealth v. Harris, 241 Pa. Super. 7, 359 A.2d 407 (1976) (16 half spoons of heroin); Commonwealth v. Wright, 234 Pa. Super. 83, 339 A.2d 103 (1975) (25 bags); Commonwealth v. Brown, 232 Pa. Super. 463, 335 A.2d 782 (1975) (25, 25, and 21 bags in respective bundles).
Appellant argues that the trial judge erred in charging the jury that (as appellant summarizes the charge) "the Commonwealth's burden of proving that appellant was not licensed to possess a controlled substance could be satisfied by proof of flight and discarding of the narcotics." Appellant's Brief at 10. This argument involves two issues, which may be considered separately.
The first issue involved in appellant's argument regarding the charge is whether the Commonwealth does have the burden of proving that an accused was not licensed to possess a controlled substance. The Commonwealth argues it does not.
It is reasonable to read the charge as instructing the jury that the Commonwealth has this burden.*fn1 The Commonwealth
[ 268 Pa. Super. Page 478]
correctly notes, however, that this court has held in Commonwealth v. Stawinsky, 234 Pa. Super. 308, 339 A.2d 91 (1975), allocatur denied, that non-registration is not an element of the crime defined by § 13(a)(30), of the Controlled Substance, Drug, Device and Cosmetic Act, supra, ...