Com. v. Driscoll
| Decision Date | 01 May 1979 |
| Citation | 401 A.2d 312,485 Pa. 99 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Patrick DRISCOLL, Appellant. |
| Court | Pennsylvania Supreme Court |
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Asst. Dist. Attys., for appellee.
Before EAGEN, C. J., and O'BRIEN, ROBERTS, NIX, MANDERINO and LARSEN, JJ.
Appellant, Patrick Driscoll, was charged with possession, possession with intent to deliver, and delivery of a controlled substance in violation of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§ 780-116, 780-130. Pre-trial motions were denied, and he was brought to trial before a judge and jury. A mistrial was declared because of the jury's inability to reach a verdict. In appellant's second trial, a jury found him guilty on all three counts. Post-verdict motions were denied, and sentence of three years probation was imposed.
Appellant then appealed to the Superior Court which affirmed (Hoffman, J., dissenting). We granted appellant's petition for allowance of appeal and this appeal followed.
Initially, appellant argues that the prosecution has failed to establish all essential elements of the crime charged. We agree.
The prosecution's evidence at trial established that on the evening of December 17, 1974, Detective James Ramsey of the Pittsburgh, Pennsylvania Police Department, was introduced to appellant by an informant with whom Ramsey had been working. This introduction came about after the informant took Ramsey to appellant's room in a Point Park College dormitory. Ramsey testified that he purchased approximately 1,000 capsules, purported to be amphetamine, from appellant for $200.00. A criminologist's analysis was entered into evidence on stipulation of both counsel. The criminologist's report stated that there were 979 capsules; that tests were performed on a randomly selected sample of those capsules; and that the tests disclosed the presence of amphetamine and caffeine. The report did not specify the number of capsules actually analyzed, nor did it state The amount of amphetamine found to be present in those capsules analyzed.
Appellant contends that the prosecution's evidence is insufficient to sustain a conviction because although the evidence establishes that appellant possessed amphetamine, that alone is not a crime. According to appellant the prosecution must present (1) evidence of the Quantity of amphetamine possessed; and (2) evidence that the quantity possessed Has a potential for abuse. The prosecution in this case concedes that it did not present evidence as to the quantity of amphetamine possessed nor did it present evidence of what quantity of amphetamine has a potential for abuse. The prosecution, however, contends that the law does not require it to prove the quantity possessed by appellant or the quantity which has a potential for abuse. Our examination of the statutory scheme of the Act and of the statutory language compels us to reject the prosecution's view.
The statutory scheme of the Act divides controlled substances into five different categories. These five categories are designated in the Act as "Schedules" and are numbered as Schedule I through Schedule V. Appellant was convicted of violating subsection iii of Schedule II. That subsection read in conjunction with other parts of the Act makes it a crime to possess with intent to deliver, or deliver:
". . . any material, compound, mixture or preparation Which contains any quantity of the following substances, having a potential for abuse associated with the stimulant effect on the central nervous system:
1. Amphetamine, Its salts, optical isomers, and salts of its optical isomers.
2. Phenmetramine and its salts.
3. Methylphenidate.
4. Any substance which contains any quantity of methamphetamine including its salts, isomers and salts of isomers.
(Emphasis added.)
Appellant claims that the language emphasized in the above quoted portion of the Act requires the prosecution to prove that the Quantity of amphetamine which appellant allegedly possessed and delivered was sufficient to have ". . . a potential for abuse associated with the stimulant effect on the central nervous system."
The prosecution counters by urging that the phrase ". . . having a potential for abuse associated with the stimulant effect on the central nervous system," modifies the preceding word, "substance," not the word "quantity," so that this portion of the Act should be interpreted to mean that proof of possession or delivery of Any quantity of amphetamine is sufficient to sustain a conviction.
The question presented is one of first impression for this Court. The Superior Court, however, addressed a similar problem in Commonwealth v. Teada, 235 Pa.Super. 438, 344 A.2d 682 (1975). In that case, the Superior Court was called upon to interpret identical language which appears in Schedule III of the Act rather than Schedule II which is now before us. Schedule II is concerned with substances that Stimulate the central nervous system while Schedule III is concerned with substances that Depress the central nervous system. Otherwise, the significant language is identical.
Schedule III provides:
"(i) Any material, compound, mixture, or preparation . . . Which contains any quantity of the following substances having a potential for abuse associated with a depressant effect on the central nervous system:
1. Any substance which contains any quantity of a derivative of barbituric acid, or any salt of a derivative of barbituric acid.
2. Chorhexadol.
3. Glutethimide.
4. Lysergic acid.
5. Lysergic acid amide.
6. Methyprylon.
7. Phencyclidine.
8. Sulfondiethylmethane.
9. Sulfonethylmethane.
10. Sulfonmethane.
(Emphasis added.)
The defendant in Commonwealth v. Teada, 235 Pa.Super. 438, 344 A.2d 682 (1975) was charged with selling phencyclidine (No. 7 above) to a police undercover agent. At trial, the prosecution established that the substance sold to the agent contained a quantity of phencyclidine, however, the prosecution did not establish the amount of phencyclidine contained in the substance sold. Furthermore, the prosecution presented no evidence in Teada that the quantity of phencyclidine contained in the substance sold to the agent would have ". . . a potential for abuse associated with a depressant effect on the central nervous system."
The Teada court held that the Act manifested a legislative intent to proscribe the possession and delivery of certain substances only if they were present in sufficient quantity to have a depressant effect on the central nervous system. If not shown to have been present in such quantities, possession or delivery of such substances was not criminal under the Act. Our grant of appellant's petition for allowance of appeal in the instant case was based, in part, upon the apparent conflict between Teada and the result reached by the Superior Court in this case.
Our purpose in this case, as it is in any case requiring interpretation of a statute, is to give effect to the intent of the legislature. To determine that intent we look both to the statutory scheme, and to the specific language of the Act. We must assume that the legislature intends every word of the statute to have effect. See, the Statutory Construction Act of 1972, Pa.C.S.A. § 1922(2) (Supp. 1978-79).
The Act authorizes the Secretary of Health of the Commonwealth to control certain substances listed in Schedules I through V. An examination of Schedules I through V reveals that Schedule I is concerned with the most dangerous controlled substances and each succeeding Schedule is concerned with progressively less dangerous controlled substances. Each Schedule in turn has various subsections. The Schedule II with which we are concerned contains four subsections. The first two subsections control certain substances such as opium, coca leaves and certain derivatives. In these two subsections there is no reference to Quantity nor does the language Having a potential for abuse appear. These terms appear however in subsection iii, the subsection under which appellant was convicted. (Subsection IV is definitional and not relevant here) These terms also appear in the relevant subsection of Schedule III which was before the Superior Court in Teada, supra.
The prosecution attempts to distinguish the result in Teada with that of the trial court in the case before us. The prosecution argues that in Teada the court was concerned with the substance, Phencyclidine, which is controlled under Schedule III. Since the statutory scheme is such that fewer restrictions may be imposed upon the latter sections and since the substance which we are concerned with, Amphetamine, is a Schedule II substance, the prosecution argues that the analysis...
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State v. Ali, No. C2-00-70.
...that the phrase "having a potential for abuse associated with a depressant effect" modified "quantity"); see also Commonwealth v. Driscoll, 485 Pa. 99, 401 A.2d 312, 316 (1979) (applying Teada in interpreting phrase "having a potential for abuse associated with a stimulant effect"). In Tead......
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In re K.A.P.
...§ 1928(b)(1), and any ambiguity in a penal statute should be interpreted in favor of the defendant. See, e.g., Commonwealth v. Driscoll, 485 Pa. 99, 401 A.2d 312, 316 (Pa.1979). Notwithstanding the primacy of the plain meaning doctrine as best representative of legislative intent, the rules......
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In re S.T.S.
...§ 1928(b)(1), and any ambiguity in a penal statute should be interpreted in favor of the defendant. See, e.g., Commonwealth v. Driscoll, 485 Pa. 99, 401 A.2d 312, 316 (Pa.1979). Notwithstanding the primacy of the plain meaning doctrine as best representative of legislative intent, the rules......
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Com. v. Shiffler
...§ 1928(b)(1), and any ambiguity in a penal statute should be interpreted in favor of the defendant. See, e.g., Commonwealth v. Driscoll, 485 Pa. 99, 401 A.2d 312, 316 (1979). Notwithstanding the primacy of the plain meaning doctrine as best representative of legislative intent, the rules of......