Com. v. Simione
Decision Date | 20 April 1972 |
Citation | 447 Pa. 473,291 A.2d 764 |
Parties | COMMONWEALTH of Pennsylvania v. Frank Peter SIMIONE, Appellant. |
Court | Pennsylvania Supreme Court |
Arthur K. Dils (submitted), Harrisburg, S. R. Zimmerman, III (submitted), Lancaster, for appellant.
Clarence C. Newcomer, Dist. Atty. (submitted), George T. Brubaker, Asst. Dist. Atty., Lancaster, for appellee.
Before BELL, C.J., and JONES, EAGEN, O'BRIEN, ROBERTS, POMEROY and BARBIERI, JJ.
Appellant Frank P. Simione was convicted, after trial by jury in the Lancaster Common Pleas Court, for violation of Section 4(q) of The Drug, Device and Cosmetic Act. 1 He was sentenced to two to five years imprisonment. The Superior Court affirmed the judgment of sentence by a per curiam order, with Judges Hoffman and Cercone joining Judge Spaulding's dissenting opinion. Commonwealth v. Simione, 218 Pa.Super. 80, 274 A.2d 541 (1970). Subsequently this Court granted allocatur. We agree with appellant that the Commonwealth's evidence was insufficient as a matter of law to establish that he 'sold' a narcotic drug. Accordingly we reverse the judgment of sentence. 2
The facts of this case are well-summarized in the dissenting opinion in the Superior Court. 3
The indictment returned by the grand jury accused appellant in language nearly identical to that of Section 4(q) of The Drug, Device and Cosmetic Act. 4 The indictment alleged that appellant 'did possess, control, deal in, dispense, sell, deliver, distribute or traffic in a narcotic drug: to wit: Hashish.'
However, appellant moved for and obtained a bill of particulars. 5 This bill, as is conceded by the Commonwealth, sepcifically set forth that appellant 6
The Commonwealth's description of the bill of particulars and the judge's charge is thoroughly substantiated by the record in this case. The bill of particulars, after setting forth that defendant was charged with a violation of Section 4(q) of The Drug, Device and Cosmetic Act, and quoting the words of that section, went on to specify:
(Emphasis added.)
Furthermore, the trial judge in his charge to the jury framed the issue to be decided as follows:
(Emphasis added.)
The function of a bill of particulars is to enable the accused to prepare for trial and to prevent surprise. 7 Thus it has long been the law in Pennsylvania that the Commonwealth is restricted to proving what it has set forth in the bill. 8 Since the bill alleged only that appellant had committed a 'sale', the Commonwealth, absent an amendment to the bill expressly allowed by the trial court, was limited to proving that appellant was guilty of a 'sale.' The prosecution could not and in fact did not attempt to convict appellant by establishing that he had engaged in 'possesion, . . . dealing in, dispensing . . . delivery, distribution, . . . (or) trafficking in . . . any dangerous or narcotic drug.' 9 Thus by reviewing all of the evidence, and viewing the evidence in the light most favorable to the Commonwealth, 10 we must determine whether the evidence was sufficient to establish that appellant 'sold' a prohibited drug.
In Commonwealth v. Harvard, 356 Mass. 452, 253 N.E.2d 346 (1969), the Supreme Court of Massachusetts was recently faced with a case whose facts were virtually identical with those of the case before us. In Harvard an undercover agent named Martin had persuaded the defendant to obtain some marihuana for him. The defendant introduced the agent to a third individual named Zacharo. The transfer of marihuana took place with the defendant standing between the agent's car and Zacharo's car. Id. at 454, 253 N.E.2d at 347.
On these facts the Massachusetts Supreme Court concluded that the evidence was insufficient to warrant a conviction on an indictment charging a 'sale' of marihuana. That court reasoned: Id. at 456, 253 N.E.2d at 348.
Under similar facts many other jurisdictions have held the prosecution's evidence insufficient to establish a 'sale.' For example in People v. Branch, 13 A.D.2d 714, 213 N.Y.S.2d 535 (1961), the court held:
(Emphasis supplied.)
To the same effect see Jones v. State, 481 P.2d 169 (Okl.Cr.App.1971); Durham v. State, 162 Tex.Cr.R. 25, 280 S.W.2d 737 (1955); Smith v. State, 396 S.W.2d 876 (Tex.Ct.Crim.App.1965); United States v. Moses, 220 F.2d 166 (3rd Cir. 1955); United States v. Sawyer, 210 F.2d 169 (3rd Cir. 1954); Jackson v. United States, 311 F.2d 686 (5th Cir. 1963); Henderson v. United States, 261 F.2d 909 (5th Cir. 1959); Cofield v. United States, 263 F.2d 686 (9th Cir. 1959); Lewis v. United States, 119 U.S.App.D.C. 145, 337 F.2d 541 (1964), cert. denied, 381 U.S. 920, 85 S.Ct. 1542, 14 L.Ed.2d 440 (1965).
We agree with those jurisdictions which have held that one who acts solely as the agent of the buyer cannot be convicted of a 'sale' of an unlawful drug. Though Pennsylvania's Drug, Device and Cosmetic Act sets forth no definition of the term 'sale,' it should be noted that our Legislature has singled out the 'sale' of narcotic drugs as deserving of especially severe punishment. The minimum penalty for the 'sale' of drugs is five years imprisonment 11 as compared to a minimum penalty of two years imprisonment for the 'possession' of narcotic drugs. 12 Webster's New International Dictionary of the English Language (2d ed. 1954) defines 'sale' as 'a contract whereby the . . . ownership of property is transferred from one person to another for a price, or sum of money, or loosely, for any consideration. . . ..' 13 This Court is obligated to construe words employed in the laws of this Commonwealth 'according to their common and approved usage.' 14 Where as here there is no evidence that the defendant received any of the proceeds of the sale or was employed by the seller to promote sales, we do not believe it can be fairly sid that defendant is guilty of a 'sale,' and we hold that as a matter of law defendant cannot be included in the category of 'sellers' of narcotic drugs that the Legislature singled out for especially severe punishment.
Accordingly the judgment of sentence is reversed and the defendant is discharged.
BELL, former C.J., and BARBIERI, former J., did not participate in the decision of this case.
While I agree with that portion of the majority opinion which holds that appellant cannot be convicted as a seller, I cannot agree with the majority's decision to limit their review to 'whether the evidence was sufficient to establish that appellant 'sold' a prohibited drug.'
Appellant was indicted, tried and convicted by a jury...
To continue reading
Request your trial-
Com. v. Bradshaw
...problem inherent in joinder can be alleviated by a motion for a bill of particulars. See Pa.R.Crim.Pro. 221. In Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972), the indictment alleged that the defendant 'did possess, (control,) deal in, dispense, sell, deliver, distribute or traff......
-
Com. v. Barone
...Construction Act, 1 Pa.C.S. § 1903 (Supp.1978-79). E. g. Commonwealth v. Hill, 481 Pa. 37, 391 A.2d 1303 (1978); Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972); Commonwealth v. Hughes, --- Pa.Super. ---, 408 A.2d 1132 (1979); Commonwealth v. Sojourner, --- Pa.Super. ---, 408 A.2d......
-
Com., by Creamer v. Monumental Properties, Inc.
...1 Pa. S. § 1903(a). Indeed, we recently so held in interpreting the word 'sale' as it is used in The Drug, Device and Cosmetic Act, 2 Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972). Speaking through Mr. justice Roberts, we held that '(t)his Court is obligated to construe words em......
-
Com. v. Bell
...usage. 1 Pa.C.S. § 1903(a) (Supp.1986); In re: Estate of Baker, 496 Pa. 577, 582, 437 A.2d 1191, 1193 (1981); Commonwealth v. Simione, 447 Pa. 473, 480, 291 A.2d 764, 768 (1972); In Re Stegmaier Estate, 424 Pa. 4, 8, 225 A.2d 566, 568 (1967); Commonwealth v. Rieck Investment Corp., 419 Pa. ......
-
Discovery
...to this and future prosecutions. See Commonwealth v. Chambers , 528 Pa. 558, 580, 599 A.2d 630, 526 (1991); Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972). Each of these purposes necessitates a bill of particulars in this case. The defendant is a pharmacist charged with defraudin......
-
Motion practice
...to this and future prosecutions. See Commonwealth v. Chambers , 528 Pa. 558, 580, 599 A.2d 630 (1991); Commonwealth v. Simione , 447 Pa. 473, 291 A.2d 764 (1972). Each of these purposes necessitates a bill of particulars in this case. 8. Mr. N is charged with incest, terroristic threats, op......
-
New Techniques in Defending Drug Cases
...v. United States, 119 U.S. App. D.C. 145, 337 F.2d 541 (1964), cert. denied 381 U.S. 920, 85 S. Ct. 1542, 14 L. Ed. 2d 440 (1965). 6. 447 Pa. 473, 291 A.2d 764 (1972). 7. 291 A.2d at 768. 8. Id. 9. 35 Pa. Stat. §§ 780-1 to 780-31. 10. 38 Mich. App. 479, 196 N.W.2d 799 (1972). 11. 196 N.W.2d......