No. 1435 April Term, 1978, Appeal from the Order of the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC 7802993A, CC 7802974A and CC 7802973A.
Charles W. Johns, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
Stanton D. Levenson, Pittsburgh, submitted a brief on behalf of appellee.
Cavanaugh, Hoffman and Van der Voort, JJ.
[ 287 Pa. Super. Page 85]
Appellee went to trial non-jury before Judge HARPER on charges of three violations of the Controlled Substances, Dangerous Drugs and Cosmetics Act, (CSDDCA) 35 Pa.C.S. § 780-101 et seq., specifically possession of cocaine, possession with intent to deliver, and delivery.*fn1
The Commonwealth's evidence was sufficient to support the convictions, unless the Commonwealth had a burden of proving a negative, that is proving that the appellee was not licensed by the State Health Department to have possession of or to dispense narcotic drugs.
When the Commonwealth rested its case there was no evidence on the record, affirmative or negative, as to whether appellee was "authorized".
Defendant appellee demurred at the close of the Commonwealth's case on the ground that the Commonwealth had not carried its burden of establishing that defendant was not licensed.
Relying upon the decision of our Court in Commonwealth v. Sojourner, 268 Pa. Super. 472, 408 A.2d 1100 (1978) (referred to sometimes hereinafter as Sojourner I), Judge Harper sustained the demurrer. The Commonwealth filed this appeal.
Sojourner I also involved convictions for violations of CSDDCA. The majority opinion in Sojourner I discussed Commonwealth v. Stawinsky, 234 Pa. Super. 308, 309 A.2d 91 (1975), which held that non-registration is not an element of
[ 287 Pa. Super. Page 86]
the crime defined by § 13(a)(30) of CSDDCA, and therefore need not be proven by the Commonwealth. The Court then discussed Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975), in which our Supreme Court said as to a violation of the Uniform Firearms Act, 18 Pa.C.S. § 6106(a) that the "structure of the statute and the nature of the prohibition convince us that the absence of a license is an essential element of the crime", to be proven by the Commonwealth. The majority opinion in Sojourner I then concluded "that Stawinsky can no longer be regarded as good law" (408 A.2d at page 1103); and "the trial judge (in Sojourner) was ...