No. 170 March Term, 1978, Appeal from the Order of the Superior Court at No. 29 April Term, 1978 entered on July 14, 1978, affirming the Judgment of Sentence entered in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division at No. CC7503838A
Leonard I. Sharon, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Asst. Dist. Attys., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Eagen, C. J., filed a concurring opinion in which Nix and Larsen, JJ., joined.
Appellant, Patrick Driscoll, was charged with possession, possession with intent to deliver, and delivery of a controlled substance in violation of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§ 780-116, 780-130. Pre-trial motions were denied, and he was brought to trial before a judge and jury. A mistrial was declared because of the jury's inability to reach a verdict. In appellant's second trial, a jury found him guilty on all three counts. Post-verdict motions were denied, and sentence of three years probation was imposed.
Appellant then appealed to the Superior Court which affirmed (Hoffman, J., dissenting). We granted appellant's petition for allowance of appeal and this appeal followed.
Initially, appellant argues that the prosecution has failed to establish all essential elements of the crime charged. We agree.
The prosecution's evidence at trial established that on the evening of December 17, 1974, Detective James Ramsey of the Pittsburgh, Pennsylvania Police Department, was introduced to appellant by an informant with whom Ramsey had been working. This introduction came about after the informant took Ramsey to appellant's room in a Point Park College dormitory. Ramsey testified that he purchased approximately 1,000 capsules, purported to be amphetamine, from appellant for $200.00. A criminologist's analysis was entered into evidence on stipulation of both counsel. The criminologist's report stated that there were 979 capsules; that tests were performed on a randomly selected sample of those capsules; and that the tests disclosed the presence of amphetamine and caffeine. The report did not specify the number of capsules actually analyzed, nor did it state the amount of amphetamine found to be present in those capsules analyzed.
Appellant contends that the prosecution's evidence is insufficient to sustain a conviction because although the evidence establishes that appellant possessed amphetamine, that alone is not a crime. According to appellant the prosecution must present (1) evidence of the quantity of amphetamine possessed; and (2) evidence that the quantity possessed has a potential for abuse. The prosecution in this case concedes that it did not present evidence as to the quantity of amphetamine possessed nor did it present evidence of what quantity of amphetamine has a potential for abuse. The prosecution, however, contends that the law does not require it to prove the quantity possessed by appellant or the quantity which has a potential for abuse. Our examination of the statutory scheme of the Act and of the statutory language compels us to reject the prosecution's view.
The statutory scheme of the Act divides controlled substances into five different categories. These five categories are designated in the Act as "Schedules" and are numbered as Schedule I through Schedule V. Appellant was convicted of violating subsection iii of Schedule II. That subsection
read in conjunction with other parts of the Act makes it a crime to possess with intent to deliver, or deliver:
". . . any material, compound, mixture or preparation which contains any quantity of the following substances, having a potential for abuse associated with the stimulant effect on the central nervous system:
1. Amphetamine, its salts, optical isomers, and salts of its optical isomers.
2. Phenmetramine and its salts.
4. Any substance which contains any quantity of methamphetamine including its salts, ...