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COMMONWEALTH PENNSYLVANIA v. FRANK POTTER (01/24/86)

filed: January 24, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
FRANK POTTER, APPELLANT



APPEAL FROM THE JUDGMENT OF SENTENCE DECEMBER 13, 1984 IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, CRIMINAL 6409-83.

COUNSEL

Sandra L. Elias, Deputy District Attorney, Media, for Com., appellee.

Wieand, Cirillo and Roberts, JJ.

Author: Cirillo

[ 350 Pa. Super. Page 63]

Appellant, Frank J. Potter, owns a small shop called "Fifth Street Jazz." In colloquial terms, the store is a "Head Shop": most of the inventory is commonly used in connection with prohibited controlled substances. Pursuant to a search warrant, a narcotics detective seized the bulk of appellant's inventory. After a jury trial, appellant was convicted of possession with intent to deliver drug paraphernalia in violation of 35 P.S. § 780-113(a)(33) and was sentenced to three months probation.

The first issue raised on the appeal is whether the trial judge properly instructed the jury on the requisite state of mind for the crime charged. He summarized to the jury as follows: "So the Commonwealth must prove that this was

[ 350 Pa. Super. Page 64]

    drug paraphernalia. They must prove that the defendant knew what it was and knew the uses for which it was capable of being put." The judge further explained that the jury should consider surrounding circumstances in deciding whether the items were drug paraphernalia, including "the statements of the owner or anyone who is in control of these objects concerning their uses," and also common knowledge of the drug related uses of the items. These factors, the judge instructed, would point to whether the accused knew whether the items would be used in contravention of the Drug Act.

In appellant's view, the instructions were improper insofar as they emphasized his knowledge of his customers' intent, instead of his own intention concerning the use of the items. In other words, he views his conviction as based upon constructive knowledge not properly attributable to appellant himself.

Admittedly, it would be unconstitutional to attribute a customer's intent to appellant, since "the statute permits a person to be arrested, prosecuted, or convicted only for that person's own intent." Pennsylvania Accessories Trade Association v. Thornburgh, 565 F.Supp. 1568, 1576 (M.D.Pa.1983). However, we find it equally extreme to suggest, as appellant does, that the Commonwealth must be saddled with the burden of proving appellant's desire to have the items used in connection with controlled substances. The proper standard lies midway between these poles.

Pursuant to 35 P.S. § 780-102(b), drug paraphernalia is that which is "intended for use" with illegal drugs. Appellant would have us interpret "intended" as meaning he must desire that the items be so used. We reject this novel proposition. One is held to intend the consequence of some action if the result is practically certain to follow from the conduct. See LaFave and Scott, Criminal Law Section 28 at 196 (1st Edition, 1972). Our own Crimes Code includes an identical interpretation of the word "intended." See 18 P.S. § 302(b)(2)(ii).

[ 350 Pa. Super. Page 65]

Consonant with this generally accepted definition, the Model Drug Paraphernalia Act, in the Comment to Article II, calls for an inquiry into whether the seller "is aware of a high probability an object will be used as drug paraphernalia." The Pennsylvania statute is patterned after the Model Act. We thus look simply to appellant's knowledge of the likelihood that the items sold would be used in conjunction with controlled substances; whether he is cognizant of an additional, lawful use of the items is not controlling. See Thornburgh, supra; Cochran v. Commonwealth, 69 Pa. Comwlth. 74, 450 A.2d 756 ...


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