decided: September 16, 1982.
PATRICIA A. COCHRAN, APPELLANT
COMMONWEALTH OF PENNSYLVANIA, APPELLEE
Appeal from the Order of the Court of Common Pleas of Bucks County in the case of Commonwealth of Pennsylvania v. Patricia A. Cochran, Nos. 258 and 260 Misc. Dkt. 1980.
Leonard I. Sharon, with him Joseph M. Devecka, for appellant.
David L. Shenkle, with him Jay H. Karsch, Eastburn and Gray, for appellee.
President Judge Crumlish, Jr. and Judges Rogers, Blatt, Craig and MacPhail. Opinion by Judge MacPhail.
[ 69 Pa. Commw. Page 75]
Before this Court is the appeal of Patricia A. Cochran (Appellant) from her conviction by the Court of Common Pleas of Bucks County for violating Doylestown Borough Ordinance No. 1980-5, which is
[ 69 Pa. Commw. Page 76]
entitled "An Ordinance of Doylestown Borough Prohibiting the Sale or Delivery of Drug Paraphernalia." We now affirm.*fn1
Ordinance 1980-5 was enacted by the Doylestown Borough on May 19, 1980. The Ordinance makes it
[u]nlawful for any person, partnership or corporation to sell, possess with intent to sell, deliver or possess with intent to deliver drug parapheralia knowing that it will be used to plant, propogate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance [as defined by The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, as amended. 35 P.S. §§ 780-101 to 144.].
The Ordinance also provides an expansive definition of the term "Drug Paraphernalia."*fn2 Notice of the Ordinance's enactment was sent to Key Records, a retail establishment located within the Borough.*fn3
[ 69 Pa. Commw. Page 77]
Appellant is a retail sales employee of Key Records. On June 9, June 11 and June 16 of 1980, Appellant was cited*fn4 for violating the Ordinance by selling, or offering for sale, items alleged to be drug paraphernalia. From her summary convictions on the citations, Appellant appealed to the court of common pleas. After a non-jury trial, the Appellant was found guilty of the citations issued on June 9 and June 11, and not guilty of the citation issued on June 16. Motions in arrest of judgment and for a new trial were denied in an en banc opinion and order filed March 10, 1981. Appellant was sentenced to a fine of $25 and to pay the costs of prosecution.
Appellant has raised three issues on this appeal: 1) is the Ordinance unconstitutionally vague, 2) did Appellant's conviction violate the due process clause of the fourteenth amendment, U.S. Const. Amend. XIV, § 1, by being based on intent transferred from remote third party manufacturers, and 3) was her trial counsel ineffective as a matter of law by failing to preserve the issue of whether the Ordinance unconstitutionally impinges on protected rights of free speech?
Several general aspects deserve mention before we undertake an analysis of the issues presented. First, much of the doubt about the constitutionality of drug paraphernalia laws in general has been laid to rest by the United States Supreme Court's recent decision in the case of Village of Hoffman Estates v. Flip-side, Hoffman Estates, Inc., U.S. , 102 S.Ct. 1186 (1982). In that case, which was a pre-enforcement challenge to a drug paraphernalia licensing ordinance, the Court held that that ordinance, which is much less
[ 69 Pa. Commw. Page 78]
detailed than the ordinance now before us, was not facially so overbroad or vague as to offend the Constitution. We, of course, recognize that Flip-side, being a pre-enforcement facial challenge to a regulatory ordinance, is not determinative of this appeal from a conviction for violating a criminal ordinance, but the case provides guidance with respect to many of the issues presented here.
Secondly, we believe this case is best understood with a dissection of Ordinance 1980-5 so as to determine what elements must be proven by the Commonwealth*fn5 in order to sustain a conviction. As we read the Ordinance, we discern four distinct elements which must be found from the evidence before a valid conviction can be had:
1) that the Appellant did possess certain objects;
2) that said objects were "drug paraphernalia" as that term is defined by the ordinance;
3) that the Appellant sold, or intended to sell, said objects; and
4) such sale or intent to sell was done "knowing"*fn6 that the objects would be used in conjunction with prohibited controlled substances.*fn7
Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we
[ 69 Pa. Commw. Page 79]
insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who must apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.
Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972) (footnotes omitted). It is against these two standards, adequate notice and non-discriminatory application, that we must examine Appellant's vagueness challenge as it applies to her conviction.*fn8
Appellant's primary focus in this vagueness challenge concerns the definition of "drug paraphernalia." Admittedly, much of the definition of "drug paraphernalia" depends upon a determination of whether an object is "used, intended for use, or designed for use" with controlled substances. However, "few words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions." Boyce Motor Lines v. United States, 342 U.S. 337, 340 (1952) (footnote omitted).
[ 69 Pa. Commw. Page 80]
Our own Supreme Court has also stated that "when an ascertainable standard is present in a statute, the violator whose conduct falls clearly within the scope of such standard has no standing to complain of vagueness." Commonwealth v. Heinbaugh, 467 Pa. at 7, 354 A.2d at 247. In view of the types of objects for which Appellant was convicted,*fn9 we find it hard to believe that the Appellant was without notice, or that the enforcement officials were discriminatory*fn10 in determining, that the objects fell within the definition of drug paraphernalia in the Ordinance.
[ 69 Pa. Commw. Page 81]
In answer to Appellant's claim that she could not be aware of what are prohibited items since, at least in theory, the items for which she was convicted could be used in a legal manner, we point out that Appellant could not be convicted without a determination that she sold the items "knowing" they would be used with prohibited controlled substances. As the U.S. Supreme Court has stated: "This requirement of the presence of culpable intent as a necessary element of the offense does much to destroy any force in the argument that application of the regulation would be so unfair that it must be held invalid." Boyce Motor Lines v. United States, 342 U.S. at 342 (footnote omitted). Appellant thus cannot complain that under the Ordinance she was convicted for selling or offering for sale items she did not know were drug paraphernalia since she was found by the trier of fact to have known they would be used with illegal drugs.*fn11
Appellant's vagueness challenge must fail.
Appellant contends that her conviction was based upon a transfer to her of the intent of third party
[ 69 Pa. Commw. Page 82]
manufacturers that their items be used with illegal drugs and that such a transfer violates due process. Appellant, however, has misconstrued the Ordinance. The trial court did not "transfer" intent from manufacturers to the Appellant; rather, she was convicted for selling or offering to sell drug paraphernalia "knowing" it would be used with prohibited controlled substances. This "knowing" requirement is Appellant's own intent, not a transferred one. While it is true that design characteristics and the advertising accompanying many of the items were considered by the trial court in ascertaining whether Appellant "knew" the paraphernalia would be used with illegal drugs, this was simply the proper use of circumstantial evidence to ascertain intent. See Commonwealth v. McConnell, 292 Pa. Superior Ct. 160, 162, 436 A.2d 1201, 1202 (1981).*fn12
Trial Counsel Ineffectiveness
Appellants' final contention is that her trial counsel was ineffective as a matter of law for failing to preserve for appeal the issue of whether the Ordinance is overbroad, that is, whether freedom of speech is unconstitutionally impinged upon.
"A claim of ineffective assistance of trial counsel is properly raised by an appellant at the earliest stage in the proceeding at which counsel whose effectiveness is challenged is no longer representing him." Commonwealth v. Upsher, Pa. , , 444 A.2d 90, 92 n. 3 (1982). Therefore this claim of ineffective assistance is proper before this Court where present counsel differs from Appellant's trial counsel.*fn13
[ 69 Pa. Commw. Page 83]
A two step process is used to evaluate the effectiveness of counsel. First, this Court must determine whether the issue underlying the claim of ineffectiveness is of arguable merit. If the underlying issue is of arguable merit, then we must determine whether counsel's decision not to raise the issue had some reasonable basis designed to effectuate his client's interests. E.g., Commonwealth v. Burton, 491 Pa. 13, 18, 417 A.2d 611, 613 (1980); Commonwealth v. Hubbard, 472 Pa. 259, 278, 372 A.2d 687, 696 (1977).
Appellant has made two arguments in asserting that this statute is overbroad. First, she contends that a marijuana leaf design on various items was used to prove certain items were drug paraphernalia. Appellant agrues that persons may wish to buy such items for their symbolic expression of a desire to reform marijuana laws. Appellant's second contention is that advertising in the magazine High Times was used as evidence of whether an item was drug paraphernalia, and that as a result there was a "chilling effect" on the desire of retailers to carry the magazine since its advertising could result in a finding that other items which they carry would be labeled as drug paraphernalia.
High Times, or for that matter any other publication, is not barred by the Ordinance, however. Literature is not regulated; therefore, the Ordinance does not directly infringe noncommercial speech. Flip-side, U.S. at , 102 S.Ct. at 1192. Further "[a]lthough drug-related designs or names on cigarette papers may subject those items to regulation, [this] does not restrict speech as such, but simply regulates the commercial marketing of items that the labels reveal may be used for an illicit purpose." Id. Quite obviously, the presence of a drug related design on an object does not make it drug paraphernalia per se under Ordinance
[ 69 Pa. Commw. Page 841980]
-5, so there can be no fear that true symbolic speech is banned by the Ordinance.*fn14
Concerning the "chilling effect" on the distribution of High Times, it is quite clear from our prior description of the elements of Ordinance 1980-5 that the only retailers who must be concerned about the advertising in that magazine are those retailers who offer for sale items "knowing" that they will be used for illicit drugs. It is only they who run the risk that such items will be declared drug paraphernalia. Other retailers obviously have no reason to fear prosecution and should not be inhibited in any way by the Ordinance from selling High Times.*fn15
Therefore, we do not believe that Appellant was ineffectively represented by counsel since the asserted issue is without arguable merit.
The order of the Court of Common Pleas of Bucks County, dated March 10, 1981, is hereby affirmed.