The opinion
Dissenting Opinion by
Spaeth, J.:
Appellant was convicted of possession of marijuana totaling two grains or .00457 ounces. 1 The marijuana consisted of the residue or brown ash found in a pipe that police officers retrieved from a cupboard drawer *156 in appellant’s kitchen. 2 This residue was not loose in the pipe, nor could its nature as residue of burnt marijuana be determined by the naked eye. A chemist employed by the Delaware County District Attorney’s Office conducted tests on the residue. At appellant’s trial, he testified that he was able to extract the residue from the pipe by “pounding [it] out”. He first examined a bit of it under a microscope using one hundred “x” magnification and found that some of the particles that had not been fully burned had the crystalline characteristics of marijuana. He also conducted a chemical test. On the basis of both the microscopic and chemical examinations he concluded that the residue came from marijuana. These tests consumed all of the residue the chemist was able to extract from the pipe.
There is a knowledge element to the offense of possession under The Drug, Device and Cosmetic Act, September 26, 1961, P. L. 1664, §4, 35 P.S. §780-4(q). Although it is clear under the reasoning of Commonwealth v. Yaple, 217 Pa. Superior Ct. 232 , 273 A. 2d 346 (1970) and Commonwealth v. Gorodetsky, 178 Pa. Superior Ct. 467 , 115 A. 2d 760 (1955), that a defendant may be convicted of possession notwithstanding his ignorance of the narcotic content of the substance he is carrying, the Commonwealth must show that the defendant was “aware or conscious of the fact that he was transporting a given article.” Commonwealth v. Schambers, 105 Pa. Superior Ct. 467, 474 , 161 A. 624, 626-27 (1932). “[I]f a person is not conscious of the act of possession of an article such as a packet of narcotics, he cannot be convicted.” Commonwealth v. Simpson, 222 Pa. Superior Ct. 296 , 302 n.2, 294 A. 2d 805, 808 (1972). See also Note, Possession of Nar *157 cotics in Pennsylvania: “Joint Possession”, 76 Dick. L. Rev. 499 , 514-516 (1972).
In this case, there is no evidence establishing that appellant was aware that the pipe contained a residue and that she knowingly possessed it. While appellant admitted that she knew the pipe was in her apartment and that she had handled it, “moving it around in the drawer”, she was not asked whether she knew or suspected that the pipe contained marijuana residue. There is no evidence from which it can be inferred that she knew the pipe had any contents. The residue the chemist found was not loose so as to fall out when the pipe was handled normally; nor was it of such great weight as to indicate its presence to one picking the pipe up. It is possible that at some time the pipe had a larger quantity of residue of a looser nature but there was no showing of that. There is no indication that appellant used the pipe or saw it being used and should have known or suspected that a residue had formed. The pipe was made of bamboo and was unusual in appearance. From the description it could serve an ornamental or decorative function. Nothing in the evidence suggests that the pipe could only be used for smoking marijuana and thus was likely to have marijuana residue therein.
Because the knowledge element of possession was not established, I would reverse.
Neither this court nor the Pennsylvania Supreme Court has considered whether a defendant may be convicted of possession of a quantity of narcotics which is insufficient for ordinary use or sale. See Comment, Possession and Control of Drugs in Pennsylvania: What is it?, 10 Duquesne L. Rev. 476, 481-482 (1972) (arguing that an unusable quantity of drugs is not what the legislature intended to prohibit when it outlawed drug possession because of the danger to users and society). There can be no doubt, however, that the quantity of narcotics involved is considered in testing the sufficiency of the evidence presented by the Commonwealth on the various elements of possession. See, e.g., Commonwealth v. Dasch, 218 Pa. Superior Ct. 43 , 269 A. 2d 359 (1970) (element of possession could not be inferred from presence of particles of marijuana mixed with dirt and debris on rear floor of auto belonging to defendant’s mother).
A few pieces of cloth, a package of cigarette papers, sunglasses, coffee cups, a few pills and a couple of envelopes were also found in the drawer.