Com. v. Metzger

Citation247 Pa.Super. 226,372 A.2d 20
PartiesCOMMONWEALTH of Pennsylvania v. Gregory METZGER, Appellant.
Decision Date18 July 1977
CourtSuperior Court of Pennsylvania

Edward F. Browne, Jr., Asst. Public Defender, Lancaster, for appellant.

Joseph C. Madenspacher, Asst. Dist. Atty., and D. Richard Eckman, Dist. Atty., Lancaster, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

VAN der VOORT, Judge.

Appellant was convicted of violation of the Drug, Device and Cosmetic Act, April 14, 1972, P.L. 233, No. 64, 35 P.S. § 780--113(a)(30), by a jury on September 25, 1975. 1 On appeal, appellant raises only one issue. He maintains that the evidence was insufficient to establish that he participated in the delivery of the drugs thereby making him criminally liable under 35 P.S. § 780--113(a)(30). He argues that his action of merely being an errand boy, 'conduit' as he refers to it, without receiving any pecuniary gain, in a sale consummated between two other people does not come within the definition or intent of the crime for which he was found guilty.

Briefly, the facts are that appellant was present in a house trailer on March 1, 1975 when an undercover narcotics agent employed by the Pennsylvania State Police and appellant's brother made a deal to purchase drugs. 2 Previously, an arrangement had been made between the narcotics agent and appellant's brother for the purchase of a large quantity of lysergic acid diethylamide (LSD) and the agent was at the trailer for the purposes of completing that transaction. However, this deal fell through due to complications involving the arrival of the LSD from York, Pennsylvania. In order to provide the agent with a sample of the type of drugs he would have purchased, appellant's brother offered to sell the agent a smaller quantity which he (appellant's brother) could procure from another individual who lived nearby. Appellant testified on direct examination that his brother told him to call this individual to see if he could supply them with five 'hit' of LSD. He further testified that he called, found out he could buy the drugs, received ten dollars from his brother to purchase the drugs, drove out to the individual's home and picked up the 'stuff', returned to his brother's trailer and gave the LSD to his brother who then sold it to the agent for ten dollars. On July 15, 1975, appellant and his co-defendant were arrested for criminal conspiracy and violation of the Drug, Device and Cosmetic Act.

The only issue presented is whether or not appellant's actions on March 1, 1975 amounted to a violation of the Drug, Device and Cosmetic Act, 35 P.S. § 780--113(a)(30). This issue is easily resolved by reading the Act. Section 780--113(a)(30) reads:

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited: (30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.

Section 780--102 defines 'Deliver' or 'Delivery' as:

. . . the actual, constructive or attempted transfer from one person to another of a controlled substance, other drug, device or cosmetic whether or not there is an agency relationship.

The appellant desires the court to read into these sections the elements of a 'sale'. In other words, if the defendant does not profit from his delivery, then he cannot be guilty of the crime. However, this position is untenable. The present Act, April 14, 1972, P.L. 233, No. 64, specifically repealed the Drug, Device and Cosmetic Act of Sept. 26, 1961, P.L. 1664, 35 P.S. 780--1 et seq., wherein the word 'sale' was part of the definition of the crime. See Act of Sept. 26, 1961, P.L. 1664, 35 P.S. § 780--4 (repealed). Under the present Act it is no longer necessary to establish that an exchange of money took place or some other arrangement of barter transpired. The offensive conduct is simply the 'actual, constructive or attempted transfer from one person to another' of the prohibited substance. By appellant's own testimony he acknowledged...

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10 cases
  • Com. v. Murphy
    • United States
    • Superior Court of Pennsylvania
    • March 25, 2002
    ...another.'" (citing Black's Law Dictionary, at 1669 (Rev. 4th ed.1968)) (internal citations omitted). See also Commonwealth v. Metzger, 247 Pa.Super. 226, 372 A.2d 20, 22 (1977) (for a delivery to take place under the Act does not require that the transfer of the controlled substance be to a......
  • Com. v. Chamberlain
    • United States
    • Superior Court of Pennsylvania
    • May 2, 1980
    ...in order to convict him under the Drug, Device and Cosmetic Act, 35 P.S. § 780-113(a)(30) (Purdon's 1977), Commonwealth v. Metzger, 247 Pa.Super. 226, 372 A.2d 23 (1977), testimony that appellant was a dealer was necessarily damaging to appellant's The majority's more serious error, however......
  • Commonwealth v. Peck
    • United States
    • United States State Supreme Court of Pennsylvania
    • December 22, 2020
    ...Brief at 26 (citing Commonwealth v. Murphy , 577 Pa. 275, 844 A.2d 1228, 1233-34 (2004) ) (quoting Commonwealth v. Metzger , 247 Pa.Super. 226, 372 A.2d 20, 22 (1977) ).3 According to the Commonwealth, acts done "outside the jurisdiction, but intended to produce and producing detrimental ef......
  • Com. v. Murphy
    • United States
    • United States State Supreme Court of Pennsylvania
    • March 22, 2004
    ...or attempted transfer of a controlled substance to another person without the legal authority to do so. See Commonwealth v. Metzger, 247 Pa.Super. 226, 372 A.2d 20, 22 (1977) ("[t]he offensive conduct is simply the `actual, constructive or attempted transfer from one person to another' of t......
  • Request a trial to view additional results

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