No. 2387 October Term, 1976, Appeal from Judgment of Sentence in the Court of Common Pleas, Trial Division, Criminal Section, Philadelphia County, at No. 2320 January Term, 1976.
David Rudovsky, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Gerald Gornish, Acting Attorney General, Harrisburg, filed an amicus curiae brief in support of the appellee.
Pennsylvania District Attorneys' Association submitted an amicus curiae brief in for form of a letter in support of the appellee.
Jacobs, President Judge, and Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., files a concurring opinion. Price, J., files a dissenting opinion. Jacobs, former President Judge, did not participate in the consideration or decision of this case.
[ 268 Pa. Super. Page 490]
The instant appeal arises from appellant's conviction following a jury trial of violating the Controlled Substance, Drug, Device and Cosmetic Act (CSDDCA), 35 P.S. § 780-113(a)(16) and (30) (1977); to wit, simple possession and possession with intent to deliver heroin. Following our initial decision in this case which was adverse to the Commonwealth, now published as a companion opinion, we granted its petition for reconsideration, limited solely to the question of whether the Commonwealth must prove in every case, beyond a reasonable doubt, that the accused was not authorized to possess a controlled substance.*fn* Having done so, we are now agreed that this aspect of our initial decision was in error.
[ 268 Pa. Super. Page 491]
The principal bone of contention in this appeal, and the aspect of our former decision which most concerned the Commonwealth is whether the trial court erred in charging the jury that the Commonwealth's burden of proving appellant was not authorized to possess a controlled substance could be satisfied by appellant's flight from the police and discarding the narcotics. The relevant facts are as follows.
On the night of December 12, 1975, at approximately 9:20 P.M., Highway Patrol Officer Steven Girard and his partner, Donald Guy, were patrolling Philadelphia on their motorcycles when they observed a 1966 station wagon being operated without tail lights or brakelights. The officers signaled the driver of the vehicle, Eugene Sojourner, to pull over, which he did. However, as soon as he brought the car to a halt, Sojourner alighted the vehicle and began to walk away. When the officers ordered him to halt, he began to run. Officer Girard pursued appellant for several blocks, and during the chase he observed appellant discard two foilwrapped bundles. Several blocks later Officer Girard apprehended appellant and, upon subsequently returning to the place where appellant had discarded the two bundles, discovered that fifty individually wrapped packets inside the two bundles contained a substance which he suspected, and chemical analysis subsequently confirmed, to be heroin.
Appellant contends the trial court erred in charging the jury that the Commonwealth's burden of proving beyond a reasonable doubt that appellant was not authorized, licensed or registered under the CSDDCA to possess heroin could be inferred from appellant's flight and his discarding the two bundles containing heroin. The Commonwealth answers that this charge was indeed erroneous, but only in a fashion harmful to the Commonwealth, because the charge ignored our decision in Commonwealth v. Stawinsky, 234 Pa. Super. 308, 339 A.2d 91 (1975), which held that the burden of proving "authorization"*fn1 by a preponderance of the evidence
[ 268 Pa. Super. Page 492]
fell on the defendant. While we agree with the Commonwealth that our reaffirmation of Commonwealth v. Stawinsky would be sufficient to dispose of this particular allegation of error, for reasons which we will subsequently set forth in this opinion, we find that Stawinsky is no longer good law and must be overruled to the extent it is inconsistent with the opinion in the instant case. Instead we will construe the applicable provisions of the CSDDCA afresh in order to determine how the burdens of proof (i. e., the burden of going forward with the evidence and the burden of persuasion) should be allocated with regard to the sections of the CSDDCA at issue in the instant case.
The Commonwealth charged appellant with violating sections 113(a)(16) and (30) of the CSDDCA*fn2 which provide:
"Prohibited Acts; Penalties.
(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
(16) Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act.
(30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance."
[ 268 Pa. Super. Page 493]
In arguing that appellant has the burden of proving authorization to possess or deliver a controlled substance, the Commonwealth's premise is that possession or delivery of a controlled substance is the conduct which the legislature sought to punish, authorization being an excuse or justification for such conduct. In essence, the Commonwealth contends that controlled substances are contraband per se, and that possession of them is the "fact of sinister significance" as it were. See Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 504 (1943); Morrison v. California, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664 (1934). If the General Assembly may punish the possession of controlled substances, the Commonwealth argues, it may assign the burden of proving authorization for possession to the accused. Regardless of whether this argument is theoretically sound, it does not jibe with the framework of the CSDDCA.
Of contraband, the Supreme Court stated in Warden v. Hayden, 387 U.S. 294, 306, n. 11, 87 S.Ct. 1642, 1650, 18 L.Ed.2d 782 (1967):
"[C]ontraband is indeed property in which the Government holds a superior interest, but only because the Government decides to vest such interest in itself. And while there may be limits to what may be declared contraband, the concept is hardly more than a form through which the Government seeks to prevent and deter crime." [Emphasis added.] See also Commonwealth v. One 1958 Plymouth Sedan, 414 Pa. 540, 543, 201 A.2d 427 (1964).
Thus, for our purposes it may be stated that in Pennsylvania possession of what the CSDDCA defines as contraband is the crime which "the Government seeks to prevent and deter." The CSDDCA, however, defines contraband in a fashion manifestly inconsistent with the essence of the Commonwealth's argument that mere possession of a controlled substance is the crime the CSDDCA seeks to prevent and deter. Section 102 of the act,*fn3 provides:
[ 268 Pa. Super. Page 494]
"'Contraband' means any controlled substance, other drug, device or cosmetic possessed by a person not authorized Page 494} by law to possess such controlled substance, other drug, device or cosmetic, or obtained or held in a manner contrary to the provisions of this Act." [Emphasis added.]
Given this statutory definition of contraband, it appears that the rudimentary offense the act sought to punish was unauthorized possession of a controlled substance, not merely possession of a controlled substance.
Second, the Commonwealth's argument offends against a basic and well-established rule of construction of criminal statutes. This court wrote in Commonwealth v. Neal, 78 Pa. Super. 216, 219 (1922), and recently reiterated with approval in Commonwealth v. Stoffan, 228 Pa. Super. 127, 140, 323 A.2d 318, 324 (1974):
"When a statute defining an offense contains an exception, in the enacting clause, which is so incorporated with the language defining the offense that the ingredients of the offense cannot be accurately and clearly described if the exception is omitted, the rules of good pleading require that an indictment founded upon the statute must allege enough to show that the accused is not within the exception, but if the language of the clause defining the offense is so entirely separable from the exception that the ingredients constituting the offense may be accurately and clearly defined without any reference to the ...