Com. v. Stawinsky

• Citation: 339 A.2d 91,234 Pa.Super. 308
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Joseph F. STAWINSKY, Appellee.
• Decision Date: 22 April 1975
• Court: Pennsylvania Superior Court

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339 A.2d 91 234 Pa.Super. 308 COMMONWEALTH of Pennsylvania, Appellant,
v.
Joseph F. STAWINSKY, Appellee. Superior Court of Pennsylvania. April 22, 1975.

[234 Pa.Super. 310] John J. Hickton, Dist. Atty. Robert L. Eberhardt, Asst. Dist. Atty., C. Johns, Pittsburgh, for appellant.

Henry C. Lamparski, Jr., S. Swem, Pittsburgh, for appellee.

[234 Pa.Super. 309] Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

[234 Pa.Super. 310] VAN der VOORT, Judge.

Appeal is taken to this Court from the lower court's order sustaining appellee's demurrer to the evidence to the charge of selling drugs and discharging the appellee-defendant.

Appellee was arrested and charged with delivery of a controlled substance (phencylidine) to an officer of the Pennsylvania State Police Criminal Investigation team. Following indictment by the Grand Jury on three counts, to-wit, possession, possession with intent to deliver and delivery of controlled substances, in violation of Section 13 of the Controlled Substance, Drug, Device

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and Cosmetic Act, ¹ appellee was held for trial. On February 19, 1974, at trial before Honorable John P. Flaherty, Judge, presiding without a jury, and following the Commonwealth's case, appellee demurred to the evidence on the ground that the Commonwealth had failed to prove that appellee was not registered with the Secretary of Health of the Commonwealth. ² The demurrer was sustained, and the Commonwealth has appealed.

[234 Pa.Super. 311] The question before the Court thus is whether as a part of its case the Commonwealth must prove that a defendant is not registered under the Act. The Act being designed to limit traffic in certain enumerated substances, the fact that one can so register and then be able to manufacture, distribute, retail, etc., makes that person exempt from the prohibitions of the Act. With this status of exemption at issue, direction must be focused to Section 21 of the Act ³ which provides as follows:

'In any prosecution under this act, it shall not be necessary to negate any of the exemptions or exceptions of this act in any complaint, information or trial. The burden of proof of such exemption or exception shall be upon the person claiming it.'

The recent case of Commonwealth v. Stoffan, 228 Pa.Super. 127, 323 A.2d 318 (1974), interpreted this provision. Therein Judge Spaeth, speaking for the Court, Judge Spaulding being absent, pointed out the 'exemptions and exceptions' referred to in Section 21 of the Act must be taken to mean only those which do not state necessary elements of the crime proscribed, lest an unconstitutional result obtain. 'If 'exemptions or exceptions' referred to clauses that stated necessary elements (of the crime) and § 21 operated to shift the burden of proof as to them onto the defendant, due process would be violated.' Commonwealth v. Stoffan, Supra, at 138, 323 A.2d at 323. Further, we rely upon Commonwealth v. Neal, 78 Pa.Super. 216 (1922), in which our court said:

"If an exception is material in arriving at the definition of a crime, it is generally held the State has the burden of showing the exception does not apply because it is then one of the essential elements of the offense. However, where the exception merely furnishes an excuse for what would otherwise be [234 Pa.Super. 312] criminal conduct, the duty devolves upon the defendant to bring himself within the exculpatory provision.' (Citations omitted)' quoting Commonwealth v. Stoffan, Supra, 228 Pa.Super. at 142, 323 A.2d at 325.

Recognizing that the registration provision of the Act does grant an excuse for conduct otherwise prohibited, and recognizing that the Act intends control over...