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filed: April 12, 1982.


NO. 2410 OCTOBER TERM, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Chester County, at No. 794, 1977 Term.


Theodore Simon, Philadelphia, for appellant.

Alan J. Jarvis, Assistant District Attorney, West Chester, for Commonwealth, appellee.

Wickersham, Hoffman and Van der Voort, JJ. Hoffman, J., files a concurring and dissenting opinion. Wickersham, J., files a dissenting statement.

Author: Van Der Voort

[ 308 Pa. Super. Page 49]

A jury found appellant guilty of possession of phentermine and marijuana with intent to deliver, and criminal conspiracy. Post-trial motions were denied and appellant was sentenced to pay a fine of $500 and to serve a term of 11 1/2 to 23 months imprisonment.

The appeal to this court, filed by appellate counsel, who replaced trial counsel, raises four arguments involving fourteen sub-issues.

We will discuss the issues in a numerical order different from that of the appellant's.

1. The sufficiency of the evidence.

Counsel argues that the Commonwealth failed to prove:

     a) that appellant was not licensed; and

     b) that the drug was a controlled substance.

[ 308 Pa. Super. Page 50]

As to proof of licensing, our decision in Commonwealth v. Sojourner, 268 Pa. Superior Ct. 488, 408 A.2d 1108 (1979), (so-called Sojourner II), clarifying Commonwealth v. Sojourner, 268 Pa. Superior Ct. 472, 408 A.2d 1100 (1978), is controlling. While the Commonwealth has the burden of proof as to non-authorization, "the accused must 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." 268 Pa. Superior Ct. at 500, 408 A.2d 1108. Appellant has failed to so proffer such evidence of authorization.

Appellant goes on to complain in essence that he was convicted for possession of a drug not listed in the schedules of controlled substances as Phentermine is not so listed. He also contends that even if listed the Commonwealth failed to demonstrate that the quantity possessed had a potential for abuse.

The first part of this argument is easily explained. Phentermine is not listed in the schedules contained in Chapter 35, Section 780-104 of Purdon's statutes. However, the Secretary of Health is authorized by The Controlled Substance, Drug, Device, and Cosmetic Act (hereafter referred to as the Act) to make additions to the list established by the General Assembly. 35 P.S. 780-103. Such supplemental schedules may be found at Title 28, Pennsylvania Code, Section 25.72. The drug Phentermine is clearly listed in schedule IV, currently at subsection (e)(3)(ii) (added August 21, 1976).

Appellant relying on Commonwealth v. Driscoll, 485 Pa. 99, 401 A.2d 312 (1979) and Commonwealth v. Teada, 235 Pa. Superior Ct. 438, 344 A.2d 682 (1975) argues that the Commonwealth failed to demonstrate that the phentermine found contained a quantity of the drug having a potential for abuse. Appellant relies on 35 P.S. § 780-104(4)(i), Act of April 14, 1972, P.L. 233, No. 64 § 4 which was in effect at the time of his arrest and which read as follows:

[ 308 Pa. Super. Page 51]

(4) Schedule IV -- In determining that a substance comes within this schedule, the secretary shall find: a low potential for abuse relative to substances in Schedule III; currently accepted medical use in the United States; and limited physical and/or psychological dependence liability relative to the substances listed in Schedule III. The following controlled substances are included in this schedule:

(i) Any material, compound, mixture, or preparation, unless specifically excepted or unless listed in another schedule, which contains any quantity of the following substances having a potential for abuse associated with a depressant effect on the central nervous system . . . . (Emphasis added)

However, phentermine was not contained in the above paragraph (i). Notice of proposed rule making was published by the Secretary of Health at 6 Pa.Bulletin 574, March 20, 1976. The rule was adopted as proposed on August 20, 1976, 6 Pa.Bulletin 1985. As proposed and adopted phentermine was contained in the following paragraph.

(ix) Diethylpropion

(x) Phentermine

(xi) Pemoline

Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the substances mentioned in paragraph (4)(ix) through (xi) of this section, having a stimulant effect on the central nervous system, including its salts, isomers whether optical, position, or geometric, and salts of such isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation.

(Emphasis added). The Secretary of Health, pursuant to the Act, 35 P.S. 780-103, had determined that any quantity of phentermine had a potential for abuse. Therefore, the Commonwealth was not required to demonstrate the drug's potential for abuse.

[ 308 Pa. Super. Page 522]

. Admission of evidence of other crimes.

Appellant's co-defendant Lord, a/k/a Snyder, (hereinafter referred to as Snyder) had pleaded guilty to the possession of cocaine, and was used as a prosecution witness against appellant. During the cross-examination of another prosecution witness, appellant's trial counsel brought out that there was testimony attributed to Snyder in the case about cocaine found only in a tool box owned by and under the control of appellant. On re-direct, over objection, Trooper Shaw stated that other cocaine was also discovered on the premises.

Appellant now contends that the admission of this testimony constituted reversible error, because a) it improperly brought in the record evidence of an apparently unrelated crime, and b) the introduction of this evidence violated an agreement between trial counsel not to inquire into drugs not alleged to be within the possession of appellant. The inquiry on redirect was in response to the cross-examination of Trooper Shaw. Defense counsel had attempted to demonstrate to the jury that if Snyder had pleaded guilty to possession of the same cocaine involved in the case, then appellant could not also have possessed the drugs in question. In any event, if appellant was prejudiced by the Commonwealth's inquiry, we find that any possible prejudice was cured when after a break to discuss the legal problem, Judge Pitt reversed himself, and instructed the jury to disregard any reference to other amounts of cocaine found elsewhere other than in the tool box. The court then informed the jury that the Commonwealth had stipulated that the appellant had no knowledge of any other cocaine. The court went so far as to poll the jury concerning their understanding that it was improper to consider such evidence.

3. Effectiveness of counsel in filing post-trial motions.

The five subheadings involved in this contention refer to alleged trial errors which were not specified in post-trial motions, and therefore deemed by the trial judge

[ 308 Pa. Super. Page 53]

    to have been waived. Appellate counsel now argues that trial counsel's failure to preserve these "meritorious issues" constituted ineffective counseling, and that, therefore, appellant is entitled to a new trial. The legal precedents do permit new counsel to raise the issue of the effectiveness of prior counsel: Commonwealth v. ...

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