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COMMONWEALTH PENNSYLVANIA v. ROBERT T. HOETZEL (02/20/81)

filed: February 20, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
ROBERT T. HOETZEL, APPELLANT



No. 204 April Term, 1979, Appeal from the judgment of the Court of Common Pleas of Erie County, Criminal Division, at No. 55 of 1978.

COUNSEL

Alan Ellis, State College, for appellant.

Michael M. Palmisano, Assistant District Attorney, State College, for Commonwealth, appellee.

Price, Brosky and Montgomery, JJ. Price, J., concurs in the result.

Author: Brosky

[ 284 Pa. Super. Page 626]

On April 17, 1978, appellant was convicted of possession of marijuana and amphetamines*fn1 with intent to deliver.*fn2 Sentence was imposed on January 23, 1979 ordering appellant to be incarcerated for a period of one year and to pay a fine of Three Hundred Dollars. Motions in arrest of judgment and for a new trial were denied on November 22, 1978. We disagree and reverse to the amphetamines related charge and remand for a new trial as to the marijuana related charge.

Information that the appellant was selling marijuana at his residence on November 9, 1977 was reported to the Pennsylvania Department of Justice, Bureau of Drug Control. Relying upon that information, on November 10, 1977, a search warrant was issued and served upon the appellant at his residence. Appellant's residence was a two-story dwelling where he rented rooms to five tenants.

The dwelling was not partitioned into separate living quarters. Instead, the tenants shared the common areas, like the kitchen and the livingroom, while regarding only the bedrooms as private.

None of the evidence seized during this search was found on appellant's person. Instead, marijuana was found in the livingroom area, kitchen and the basement, while the amphetamines were found in the kitchen and in appellant's bedroom. Drug related paraphernalia and pieces of equipment were found on the premises also. Based upon this evidence, appellant was brought to trial and eventually convicted.

[ 284 Pa. Super. Page 627]

Through new counsel, the appellant now seeks our determination on the following issues:

(1) that the evidence was insufficient to sustain the verdict of possession of amphetamines, as there was an insufficient quantity to cause a harmful effect on the central nervous system;

(2) the trial counsel was ineffective for not objecting to the trial court's instructions to a finding of "possession;"

(3) the trial counsel conducted an ineffective cross-examination of a prosecution witness.

The thrust of the appellant's first contention is that the trial court retroactively and improperly applied the amended version of 35 P.S. ยง 780-104(2)(iii) which elevated the possession of amphetamines from a Schedule II to a Schedule I drug. Hoetzel claims the amendment was not to become effective until eight months following his conviction. Accordingly, we are asked to determine whether this retroactive application of the amended statute in the appellant's case was an invalid exercise of the law.

The Controlled Substance, Drug, Device and Cosmetic Act divides controlled substances into five categories. The appellant was convicted of violating subsection iii of Schedule II, the possession of amphetamines, and subsection iii of Schedule I, the possession of marijuana. At the time of appellant's arrest, November 10, 1977, and subsequent conviction, April 17, 1978, subsection iii of Schedule II, read in conjunction with other parts of the Act, made it a crime to possess with intent to deliver the following:

(iii) Unless specifically excepted or unless listed in another schedule, any material compound, mixture or preparation which contains any quantity of the following substances, having a potential for abuse associated ...


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