No. 2953 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division, at No. 2072-78.
Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellant.
Richard D. Winters, Norristown, for John A. Fisher, appellee.
Frederick W. McBrien, III, Norristown, for James Joseph Maloney, appellee.
Cercone, President Judge, and Watkins and Hoffman, JJ.
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The Commonwealth's appeal in this case arises from the lower court's granting of the defendants' motions in arrest of judgment on the charges of possession with intent to
[ 276 Pa. Super. Page 74]
deliver a controlled substance.*fn1 The basis for the lower court's order was our original decision in Commonwealth v. Sojourner, 268 Pa. Super. 472, 408 A.2d 1100 (1978) which had been handed down prior to the trial of this case, October 16 to 18, 1978. Following this court's original Sojourner decision, however, we granted the Commonwealth's petition for reargument in that case, the result establishing a different approach on the parties burden of proof. Commonwealth v. Sojourner, 268 Pa. Super. 488, 408 A.2d 1108 (1979). Because the court below in the instant case did not have the benefit of our second opinion in Sojourner which would have required denying the defendants' motions in arrest of judgment, we will vacate the order granting the motions and remand for further proceedings consistent with this opinion.
The facts need not be set forth at length for the purposes of this opinion. Suffice it to say that the defendants, appellees herein, were arrested by the Pennsylvania State Police on April 21, 1978, immediately after completing a $23,000 sale of one pound of cocaine to undercover police officers.*fn2 At trial, apparently because of our initial decision in Commonwealth v. Sojourner, supra, the Commonwealth offered certificates from both the Commissioner of Professional and Occupational Affairs and from the Administrative Secretary of the Pennsylvania Drug, Device, and Cosmetic Board, to the effect that the defendants were not licensed to possess, manufacture or distribute controlled substances insofar as licensing and registration with those boards was concerned. The problem with the Commonwealth's proof in this regard, aside from the fact that the certificates did not exhaust the possible legal grounds for possession of controlled substances, was that the certificate from the Commissioner of Professional and Occupational Affairs only certified non-licensure as of February 8, 1978, seventy-two days prior to the sale. Thus, the court determined
[ 276 Pa. Super. Page 75]
that the Commonwealth failed to sustain its burden of proving non-licensure on the date of the sale beyond a reasonable doubt, a conclusion the court candidly stated it regretted, but felt compelled to reach.
We need not decide whether the court's application of the initial Sojourner decision to the facts of this case was correct, because the defendants offered no evidence in their defense, and the Commonwealth's case-in-chief was devoid of any evidence of non-licensure. In light of this, under our most recent opinion in Commonwealth v. Sojourner following reargument, the Commonwealth's burden of initially proving non-licensure beyond a reasonable doubt was held not necessary. As we said in that case, "the trend is developing, and we find it to be the preferable view, that the accused first come forward with some credible evidence of authorization [assuming the government's case-in-chief has not provided such evidence] before the government need negative authorization beyond a reasonable doubt." ...