Appeal from the Order dated January 4, 1984 in the Court of Common Pleas of Delaware County, Criminal No. 4085-83. Appeal from the Order dated January 4, 1984 in the Court of Common Pleas of Delaware County, Criminal No. 4084-83. Appeal from the Order dated January 4, 1984 in the Court of Common Pleas of Delaware County, Criminal No. 4601-83.
Sandra L. Elias, Deputy District Attorney, Media, for Commonwealth, appellant.
Joseph M. Devecka, State College, for appellees.
Cavanaugh, Olszewski and Hoffman, JJ.
[ 344 Pa. Super. Page 578]
This matter comes before us on appeal from the dismissal of certain criminal charges against appellees Rodney L. Lacey, Michael Smith and William Stewart. The charges, possession with intent to use drug paraphernalia and possession
[ 344 Pa. Super. Page 579]
with intent to distribute drug paraphernalia, followed a police raid on a suspected "head" shop. Finding that the Commonwealth had failed to establish a prima facie case against appellees, the lower court dismissed the charges. We have reviewed the record and the briefs in this matter. For the reasons that follow, we affirm in part, reverse in part the lower court's orders.
Testimony at the preliminary hearing established that on July 28, 1983, Detective Gregory A. Kennard entered Balcony Inc., a store located at 6901 Market Street, Upper Darby, and purchased a large "bong" type pipe and a dagger which had metal knuckles built into its handle. While in the store, Kennard observed offered for sale numerous other items, some of which he considered drug paraphernalia and others, such as posters, albums and concert type shirts, which he deemed unrelated to drugs. August 3, 1983, Kennard returned to Balcony Inc. Ascertaining that the store's merchandise remained essentially the same, Kennard prepared an affidavit for a search warrant. Later that day, the warrant issued, Kennard with detectives searched the Balcony Inc. store and seized certain merchandise then on display, as well as other merchandise found in the store's back room. Complaints were lodged against appellees Michael Smith, William Stewart and Rodney L. Lacey*fn1 for violations of the Controlled Substances, Drug Devices and Cosmetic Act, to wit, use of or possession with intent to use drug paraphernalia*fn2 and delivery of or possession with intent to deliver drug paraphernalia.*fn3 Additionally, appellees were each charged with a violation of the Crimes Code, the possession of prohibited offensive weapons.*fn4
[ 344 Pa. Super. Page 580]
Following a preliminary hearing, appellees were held for court on all charges. Counsel filed a petition for habeas corpus was filed on behalf of each appellee. The Honorable R. Barclay Surrick determined that the evidence presented by the Commonwealth failed to establish a prima facie case on the drug paraphernalia charges.*fn5
In this appeal, Commonwealth argues that the testimony presented against appellees did establish a prima facie case as to each of the crimes charged. A question arises as to exactly what elements of proof constitute a prima facie case under 35 P.S. Section 780-113(a)(33).*fn6 The statute prohibits:
The delivery of, possession with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it would be used to plant, propagate, 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 in violation of this act.
Commonwealth contends that the items seized are, by virtue of their display in a "head" shop, necessarily drug paraphernalia. "Possession with intent to deliver," under the Commonwealth's theory, follows from display of drug paraphernalia in a "head" shop. The lower court, applying a more stringent scienter requirement, rejected Commonwealth's first premise. "We fail to see how this evidence establishes that the defendants held for sale the multi-purpose items seized by authorities with the specific intent that they would be used in ...