Com. v. Potter

• Decision Date: 24 January 1986
• Citation: 350 Pa.Super. 61,504 A.2d 243
• Parties: COMMONWEALTH of Pennsylvania v. Frank POTTER, Appellant. 00135 PHILA. 1985
• Court: Pennsylvania Superior Court

Page 243

504 A.2d 243

350 Pa.Super. 61

COMMONWEALTH of Pennsylvania v. Frank POTTER, Appellant.

00135 PHILA. 1985

Superior Court of Pennsylvania.

Argued Sept. 12, 1985.

Filed Jan. 24, 1986.

Sandra L. Elias, Deputy Dist. Atty., Media, for Com., appellee.

Before WIEAND, CIRILLO and ROBERTS, JJ.

CIRILLO, Judge.

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 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).

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 (1982); Commonwealth v. Lacy 344 Pa.Super. 576, 496 A.2d 1256 (1985) (adopting Thornburgh ); Town Tobacconist v. Kimmelman, 94 N.J. 85, 462 A.2d 573 (1983).

It now remains for us to determine how this intent on the part of appellant is to be found. The definition of drug paraphernalia is incorporated into the proscriptive section of the statute itself. When an item sold is among those listed in the statute as drug paraphernalia, intent on the part of the seller is automatically found. However, if the item sold is not on the list of prohibited items, it does not necessarily follow that the seller cannot be convicted under the statute. As the trial judge explained in his charge to the jury, there may exist important surrounding circumstances which allow a finding of intent to deliver paraphernalia. Thus, a grocery store owner who sells plastic baggies to a customer unaware of the use to which they will be put has broken no law, since baggies are not listed by statute as drug paraphernalia. However, if the customer were to ask the grocer for plastic baggies suitable for the storage of marijuana and the grocer provided them, a jury could very well find the seller in violation of the law, because in such instance the baggies are drug paraphernalia. See Town Tobacconist, Id., at 116-17, 462 A.2d at 589.

Statements made by the buyers concerning their intended use of the items were not attributed to the seller in finding his intent. Rather, the statements were merely an aid in determining whether the products sold actually had a commonly recognized drug-related function; as such, they were a factor among many to be considered by the jury. No direct correlation was made between the buyers' intent and that of the seller. The charge was therefore proper in all respects.

Appellant also argues that the Commonwealth's circumstantial evidence was insufficient to prove him guilty beyond a reasonable doubt. As has been repeatedly held, the test to be applied is whether the facts support the guilty verdict when interpreted in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Lindsey, 345 Pa.Super. 191, 497 A.2d 1369 (1985); Commonwealth v. Merrick, 338 Pa.Super. 495, 488 A.2d 1 (1985); Commonwealth v. Brown, 336 Pa.Super 628, 486 A.2d 441 (1984). Further, guilt beyond a reasonable doubt can be shown wholly by circumstantial evidence. Commonwealth v. Shirey, 343 Pa.Super. 189, 494 A.2d 420 (1985); Commonwealth v. Alvarado, 333 Pa.Super. 63, 481 A.2d 1223 (1984). It has been specifically held that...