Com. v. Sojourner

• Decision Date: 21 August 1978
• Citation: 268 Pa.Super. 472,408 A.2d 1100
• Parties: COMMONWEALTH of Pennsylvania v. Eugene SOJOURNER, Appellant.
• Court: Pennsylvania Superior Court

Page 1100

408 A.2d 1100

268 Pa.Super. 472

COMMONWEALTH of Pennsylvania v. Eugene SOJOURNER, Appellant.

Superior Court of Pennsylvania.

Argued June 13, 1977.

Filed July 12, 1978.

Rehearing Granted Aug. 21, 1978.

David Rudovsky, Philadelphia, for appellant.

Eric B. Henson, Asst. Dist. Atty., with him F. Emmett Fitzpatrick, Dist. Atty., Philadelphia, for Commonwealth, appellee.

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

SPAETH, Judge:

Appellant was convicted of violations of the Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64, § 13(a)(16) and (30), as amended, 35 P.S. § 780-113(a)(16) and (30). He makes four arguments for a new trial: (1) his motion to suppress evidence should have been granted; (2) the Commonwealth failed to prove intent to deliver; (3) the trial judge erred in charging the jury; and (4) the trial judge responded inadequately to prosecutorial misconduct. We reverse the conviction on the basis of the last argument.

-1-

On the night of December 12, 1975, two Philadelphia motorcycle police officers saw a car being driven by appellant without tail lights. The officers signaled appellant to pull over. Appellant pulled over and got out of his car but as the officers were alighting from their motorcycles, he walked away. When Officer Steven Girard called out to him, appellant began to run toward a quadrangle of apartment houses. Girard, on his motorcycle, gave chase. During the chase, from a distance of about 50 feet, Girard saw appellant throw something to the ground. After a chase of several blocks, Girard caught appellant and found the car keys in appellant's hand and the owner's card in his pocket; appellant had no driver's license. When Girard's fellow officer arrived, the two officers returned to the spot where Girard had seen appellant throw something, and found two foil packets, each containing 25 small glassine bags of what later proved to be heroin.

Appellant argues that his action of throwing away the heroin was a "forced abandonment," Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973), because the officers had no probable cause to arrest him, and therefore should not have chased him.

For purposes of discussion we may agree with appellant that the officers had no probable cause to arrest him; it does not follow that they should not have chased him. In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court held that a police officer suspecting criminal activity is justified in making a brief investigatory stop of someone when the officer can point to "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion," Id. at 21, 88 S.Ct. at 1880. In Commonwealth v. Hayes, 237 Pa.Super. 510, 352 A.2d 121 (1975), this court held that police officers were justified in stopping two persons while checking to see whether there had been a burglary in a building the two persons had been seen leaving with boxes, a television set, and a portable typewriter. Here, having seen appellant driving without tail lights the officers were justified in stopping appellant to ask for identification and data on his car. The Vehicle Code, Act of July 16, 1970, P.L. 487, No. 166, § 1, 75 P.S. § 1221; currently, Act of June 17, 1976, P.L. 162, Act No. 81, as amended, Eff. July 1, 1977, 75 Pa.C.S.A. § 6308. The officers could assume that appellant knew what they were about to ask him for. When appellant ran away, the officers had reason to suspect that something more than a routine traffic violation had occurred, for example, that the car was stolen. Officer Girard was therefore justified in chasing appellant; that was the only way he would be able to make a brief investigatory stop of appellant. We do not have to decide whether upon catching appellant, the officers were justified in ultimately arresting him, for appellant's action of throwing away the heroin was not a "fruit" of the arrest but of the lawful pursuit. Jeffries is distinguishable. There the suspect had done nothing unlawful or suspicious to justify a police pursuit; he had merely quickened his pace as the police observed him from their vehicle.

-2-

We find no merit in appellant's argument that the Commonwealth failed to prove intent to deliver. An officer with considerable experience as an undercover agent testified that a person who had "two bundles, 50 bags" "more than likely (had them) for sale." N.T. 82. This was sufficient to permit the jury to infer intent to deliver. See Commonwealth v. Harris, 241 Pa.Super. 7, 359 A.2d 407 (1976) (16 half spoons of heroin); Commonwealth v. Wright, 234 Pa.Super. 83, 339 A.2d 103 (1975) (25 bags); Commonwealth v. Brown, 232 Pa.Super. 463, 335 A.2d 782 (1975) (25, 25, and 21 bags in respective bundles).

-3-

Appellant argues that the trial judge erred in charging the jury that (as appellant summarizes the charge) "the Commonwealth's burden of proving that appellant was not licensed to possess a controlled substance could be satisfied by proof of flight and discarding of the narcotics." Appellant's Brief at 10. This argument involves two issues, which may be considered separately.

(a)

The first issue involved in appellant's argument regarding the charge is whether the Commonwealth does have the burden of proving that an accused was not licensed to possess a controlled substance. The Commonwealth argues it does not.

It is reasonable to read the charge as instructing the jury that the Commonwealth has this burden. ¹ The Commonwealth correctly notes, however, that this court has held in Commonwealth v. Stawinsky, 234 Pa.Super. 308, 339 A.2d 91 (1975), Allocatur denied, that non-registration is not an element of the crime defined by § 13(a)(30), of the Controlled Substance, Drug, Device and Cosmetic Act, Supra, 35 P.S. § 780-113(a)(30), and therefore need not be proved by the Commonwealth.

In Stawinsky, we relied on Commonwealth v. Stoffan, 228 Pa.Super. 127, 323 A.2d 318 (1974), where we discussed the various factors to be considered in deciding what is and what is not an essential element of a crime. ² Since Stawinsky, however, the Supreme Court has decided Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975). There the prosecution was under § 628(e) of the Uniform Firearms Act, Act of June 24, 1939, P.L. 872, § 628(e), as amended, 18 P.S. § 4628(e) (Supp.1974), now Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 6106(a), which provided:

No person shall carry a firearm in any vehicle or concealed on or about his person, except in his place of abode or fixed place of business, without a license therefor as hereinafter provided.

Without elaboration, the Court held that "(t)he structure of the statute and the nature of the prohibition convince us that the absence of a license is an essential element of the crime," to be proved by the Commonwealth. Id. at 715, 337 A.2d at 843. Although the Court cited Commonwealth v. Stoffan, supra, it did so only obliquely (the cite was Cf.); the Court did not indicate whether it had arrived at its decision after consideration of the factors discussed in Stoffan.

While it may be granted that the brevity of the Court's discussion in McNeil leaves one in some uncertainty, nevertheless, given McNeil, we conclude that Stawinsky can no longer be regarded as good law; the similarity between § 628(e) of the Uniform Firearms Act, Supra, 18 Pa.C.S.A. § 6106(a), and § 13(a) (30) of the Controlled Substance, Drug, Device and Cosmetic Act, Supra, 35 P.S. § 780-113(a)(30), is too close to permit sensible distinction. Thus, § 13(a) (30) forbids

the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, as a practitioner not registered or licensed by the appropriate state board . . . .

This is substantially the same as saying that "(n)o person shall carry a firearm in any vehicle or concealed about his person without a license as hereinafter provided." We therefore conclude that the trial judge was correct in instructing the jury that the Commonwealth had the burden of proving that appellant was not licensed to possess a controlled substance.

-b-

The second issue involved in appellant's argument regarding the charge is whether the trial judge was correct in instructing the jury that it could infer that appellant was not licensed to possess a controlled substance from the evidence that appellant had fled and had thrown away the heroin.

It is clear that the use of inference to prove a necessary element of a crime is not barred by the due process clause, Barnes v. United States,412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973), although the fact inferred must follow beyond a reasonable doubt from the facts proved, Commonwealth v. Turner, 456 Pa. 116, 317 A.2d 298 (1974) (Mr. Justice ROBERTS, concurring). As appellant notes, however, the mere desire to avoid arrest, even if arrest will certainly end in exoneration, might motivate a licensed person to dispose of drugs and flee from the police. Consequently, appellant argues it was error for the trial judge in his charge to refer the jury to the evidence that appellant had fled and thrown away the heroin. In response to this argument, the trial judge in his opinion has cited other evidence to which the jury might have been referred for example, that appellant had for the past several years operated a record store. However, we need not decide whether as given the charge was adequate. Appellant objected to the charge, but on a different ground (N.T. 198). He thereby waived the objection he makes now. Commonwealth v. Williams, 458 Pa. 319, 326 A.2d 300 (1974); Commonwealth v. Keysock, 236 Pa.Super. 474, 345 A.2d 767 (1975).

-4-

The facts pertinent to appellant's argument regarding prosecutorial misconduct may be stated as...