No. 135 October Term, 1977, Appeal from the Order dated September 23, 1976, of the Court of Common Pleas of Lycoming County, Criminal Division at No. 75-10, 674.
Charles J. Tague, Jr., Assistant Public Defender, Williamsport, for appellant.
Robert F. Banks, First Assistant District Attorney, Greenville and William S. Kieser, District Attorney, Williamsport, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, President Judge, dissents. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 260 Pa. Super. Page 396]
This appeal arises from an order of the lower court granting, at appellant's request, a new trial. For the reasons herein stated, the appeal is quashed.
The procedural history of the case is as follows. After a jury trial, appellant was convicted on December 11, 1975, of two counts of possession with intent to deliver and delivery
[ 260 Pa. Super. Page 397]
of a controlled substance,*fn1 namely methylphenidate.*fn2 Appellant then made a motion in arrest of judgment, claiming that the evidence was not sufficient to prove "one of the elements of the crime charged, i. e., that the substance allegedly delivered contained a quantity of methylphenidate which would have a potential for abuse associated with a stimulant effect upon the central nervous system[.]" On February 18, 1976, that motion was denied. On April 26, 1976, appellant motioned for a new trial on the basis of after-discovered evidence. Appellant claimed:
"Stuart H. James, a Forensic Toxicologist at the State University of New York at Binghamton, performed an analysis upon the pills which are alleged to have contained Methylphenidate and found that said pills contained no controlled substance whatsoever."
As the result of a conference between the court and counsel, the Commonwealth agreed that if another independent analysis of the pills indicated that no controlled substance was present, the Commonwealth would not oppose appellant's application for a new trial. The analysis revealed no controlled substance in the pills, and on September 23, 1976, the lower court granted appellant's request for a new trial. On September 27, 1976, appellant filed a notice of appeal, in which he claimed to be appealing "from the Order of the Lower Court granting a new trial but denying a Motion for Arrest of Judgment in this matter on the 21st day of September, 1976."*fn3
Appellant's original argument, and the only one contained in his brief before this court, that the Commonwealth had not sufficiently established that the substance confiscated ...