United States ex rel. Kirchner v. Johnstone
Decision Date | 22 June 1978 |
Docket Number | Civ. A. No. 75-3689,77-3572. |
Citation | 454 F. Supp. 14 |
Parties | UNITED STATES of America ex rel. James KIRCHNER v. W. G. JOHNSTONE, Jr., President Judge, Court of Common Pleas of Lancaster County, Pennsylvania, et al. Kenneth Shalom MILLROOD v. Superintendent Lowell D. HEWITT and the Attorney General of the State of Pennsylvania. |
Court | U.S. District Court — Eastern District of Pennsylvania |
Thomas Colas Carroll, Philadelphia, Pa., for Kirchner.
Donald J. Goldberg, Philadelphia, Pa., for Millrood.
Charles A. Achey, Jr., Asst. Dist. Atty., Lancaster, Pa., for Commonwealth defendants.
Petitioners James Kirchner and Kenneth Shalom Millrood were tried and convicted in the Court of Common Pleas of Lancaster County, Pennsylvania upon the charge of possession with intent to deliver marijuana and conspiracy in violation of 35 P.S. § 780-113(a)(30). They were sentenced to a period of incarceration and fined. Both have filed petitions for writs of habeas corpus pursuant to 28 U.S.C. § 22541 contending that their constitutional rights were violated in that they were convicted of violating 35 P.S. § 780-113(a)(30) even though the Commonwealth did not prove that they were not registered under the Act or registered or licensed by the appropriate State Board.2
35 P.S. § 780-113 provides in pertinent part:
35 P.S. § 780-121 provides:
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.
At their trial, no evidence was produced by the Commonwealth to prove that defendants were not registered under the Act or were practitioners not registered or licensed by the appropriate State board. Defendants demurred to the evidence and sought a directed verdict on the ground, among others, that the Commonwealth had not met its burden of proving that they were not so registered. The trial judge denied their motions.
Petitioners contend that in order to be found guilty of violating 35 P.S. § 780-113(a)(30), proof that they were neither registered nor licensed is an essential element of the crime, and that a defendant constitutionally cannot be required to bear the burden of proving registration and/or licensing. The critical determination for this Court is whether non-registration is an essential element of the crime defined in 35 P.S. § 780-113(a)(30). If it is, the Commonwealth had the burden of establishing non-registration beyond a reasonable doubt, and the petitioners' writs should be granted.
As the Supreme Court has stated:
the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.
In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970); see also, Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281 (1977); United States of America ex rel. Hickey v. Jeffes, 571 F.2d 762, 764 (3d Cir. 1978).
When ruling on a petition for habeas corpus in connection with the application of a state statute, a federal district court takes the statute with the interpretation placed upon it by the courts of that state "as though that interpretation had been written into the statute by the state legislature itself." United States v. Deegan, 294 F.Supp. 1347, 1350 (S.D.N.Y.1969) (footnote omitted); Schmidt v. Hewitt, 573 F.2d 794, 797, (3d Cir. 1978). As stated by the Supreme Court in Mullaney v. Wilber, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), "state courts are the ultimate expositors of state law . . . and federal courts are bound by their constructions except in extreme circumstances . .." Hallowell v. Keve, 555 F.2d 103, 107 (3d Cir. 1977). This is equally true in the determination of what constitutes essential elements of a crime. United States ex rel. Pendergrass v. Anderson, 304 F.Supp. 577, 579 (D.Del.1969).
The Pennsylvania Superior Court has recently considered this very statute. Commonwealth v. Stawinsky, 234 Pa.Super. 308, 339 A.2d 91 (1975).3 Stawinsky, like petitioners in the instant case, was charged with delivery of a controlled substance in violation of 35 P.S. § 780-113(a)(30). At trial, the Commonwealth did not introduce evidence that he was not registered as provided in the Act. The Court held that "proving a defendant not be registered is not a necessary element of the crime of violating the Act." Stawinsky, 339 A.2d at 92. As analyzed by Judge Spaeth in his concurrence:
Id. at 94-5. (footnote omitted).
Petitioners concede that the issue involved in the instant case is precisely that decided in Stawinsky. Petitioners contend, however, that Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975), which was decided three weeks after Stawinsky, has changed the law in Pennsylvania. McNeil involved, among other things, a prosecution for carrying a firearm without a license in violation of 18 P.S. § 4628(e), which provides:
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 therefore as hereinafter provided.
The Pennsylvania Supreme Court held that the absence of a license is an essential element of the crime, and therefore that the Commonwealth had the burden of establishing this element beyond a reasonable doubt. The distinction between McNeil and Stawinsky is obvious, each involved separate offenses which have been construed by Pennsylvania courts as entailing different essential elements of statutory crimes.
As stated in Commonwealth v. Stoffan, 228 Pa.Super. 127, 323 A.2d 318, 323-24 (1974):
The Pennsylvania Superior Court in Stawinsky reviewed the statute involved in the instant petitions and determined that registration is an exception and not an essential element of the crime. We have found nothing in McNeil which leads us to conclude that the Supreme Court of Pennsylvania would interpret this statute in a manner...
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