stating that in order for the burden to shift to the Commonwealth, the accused must come forward with some credible evidence of authorization before the prosecution has to disprove the accused’s claim of authorization beyond a reasonable doubt
How later courts described this case
- stating that in order for the burden to shift to the Commonwealth, the accused must come forward with some credible evidence of authorization before the prosecution has to disprove the accused’s claim of authorization beyond a reasonable doubt
- explaining that in controlled substance prosecutions, the defendant bears the initial burden of production as to his authorization before the Commonwealth has the burden of proving a lack of authorization beyond a reasonable doubt
- holding “‘non- authorization’ is an element of . . . Section 113(a)(16)” but nevertheless shifting the burden of production to the defendant because of policy concerns
- “[W]e find it to be the preferable view, that the accused come forward with some credible evidence of authorization (assuming the government’s case-in-chief has not provided such evidence) before the government need negative authorization beyond a reasonable doubt.”
Written by the judges who cited it.
The opinion
PRICE, Judge,
dissenting:
It is unfortunate that I was unable to participate in the original argument in this appeal, wherein the majority of the judges then participating, by a 3-2 vote, adopted Judge Spaeth’s opinion granting a new trial. After reargument it has been decided that under the order granting reconsideration and a second argument, I may not now participate in changing that result but may only participate in the decision on the licensure question. Although I disagree with that decision barring my participation in full reconsideration, I shall abide by it.
I agree and join Judge Cercone’s opinion as to the licensure question.
I dissent and protest the grant of a new trial to this appellant on the grounds that the trial court erred in failing to take adequate precautions to guard against the prejudicial potential concerning alleged prosecutorial misconduct. Such a conclusion is not legally sound and is procedurally ridiculous. This is particularly true where a clear majority of our Court participating in the reargument agrees that no error occurred.
*511 Although I am pleased that we are able to give present guidance to our trial courts on the troublesome issue of licensure, I am dismayed that the Court of Common Pleas of Philadelphia County must retry this appellant.
I would affirm the judgment of sentence.