No. 101 March Term, 1977, Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, entered on January 22, 1974, at No. 8186 December Term, 1971, Allocatur granted January 31, 1977, from the Order of the Superior Court affirming the Judgment of Sentence at No. 209 April Term, 1974.
Allen N. Brunwasser, Pittsburgh, for appellants.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., C. W. Johns, Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ.
This appeal raises the interesting question as to whether evidence showing that appellants possessed a quantity of contraband and other paraphernalia consistent with dealing in narcotic drug traffic which would justify a conviction under section 20(d) of the former Drug Device and Cosmetic Act*fn1 in absence of any proof of an actual transaction. For the reasons that follow we hold that the evidence is legally insufficient to support a conviction under section 20(d).
Appellants were arrested on August 19, 1971 after Pittsburgh police obtained four warrants; three warrants were to search the automobile, house and person of Izeor Hill, and one warrant to search the person of Fred Hill for dangerous drugs "and paraphernalia to administer and package same." On the evening of August 19, 1971, the appellants were confronted outside the home of Izeor Hill and fifty-six packets of alleged contraband and a bottle were seized from Izeor Hill and from his car trunk; fifteen packets were seized from Fred Hill. A house search led to the seizure of seven measuring spoons and two brown boxes with a large amount of glassine bags. They were indicted for possession of and dealing in heroin and cocaine.
Prior to trial the petitioners filed a motion to suppress physical evidence, which motion was denied without findings
of fact and conclusions of law. The petitioners were convicted as charged after a jury trial. Post-trial motions were denied, and they were sentenced to serve a term of not less than one year nor more than five years. An appeal was taken to the Superior Court, which court affirmed the convictions per Watkins, P. J. in a four-to-three decision, with Judge Hoffman, joined by Judge Cercone, filing a dissenting opinion and Judge Spaeth filing another dissenting opinion. Commonwealth v. Hill, 236 Pa. Super. 572, 346 A.2d 314 (1975). We granted review.*fn2
Section 4(q) of the 1961 Act prohibited:
"The possession, control, dealing in, dispensing, selling, delivery, distribution, prescription, trafficking in, or giving of, any dangerous or narcotic drug." Drug, Device and Cosmetic Act of ...