Petition — Millrood v. Hewitt

> Supreme Cour, UX

FILED

3

| _SEP_19 1979

IN THE MIC Hast RODAK, IR. , CLERI

Supreme Court of the United States

Ocroser TERM, 1979

€9-466

KENNETH SHALOM MILLROOD, ©

Petitioner,

os.

SUPT. LOWELL D. HEWITT and THE ATTORNEY GENERAL

OF THE STATE OF PENNSYLVANIA,

UNITED STATES OF AMERICA ex rel:

JAMES KIRCHNER,

Petitioner,

vs.

W. G. JOHNSTONE, Jr., PRESIDENT JUDGE, COURT OF

COMMON PLEAS OF LANCASTER COUNTY,

PENNSYLVANIA; D. RICHARD ECKMAN, DISTRICT

ATTORNEY OF LANCASTER COUNTY, PENNSYLVANIA

Joint Petition for Writ of Certiorari to the United

States Court of Appeals for the Third Circuit

JOHN ROGERS CARROLL, DONALD J. GOLDBERG,

THOMAS COLAS CARROLL, Attorney for Petitioner,

PETER GOLDBERGER, Kenneth Shalom Millrood,

1420 Two Girard Plaza,

oe eeng Bi aero : Philadelphia, Pennsylvania 19102

| : (215) LO 3-6345

Attorneys for Petitioner,

James Kirchner,

Suite 326,

Three Penn Center Plaza,

Philadelphia, Pennsylvania 19102

(215) 568-5200

Pennsylvania Appellate Printing Co.—Call Toll Free—!(800) 526-7560

‘

TABLE OF CONTENTS

Joint Petition for Writ of Certiorari to the United States

Court of Appeals for the Third Circuit ........ ]

IES PR aA Uk Ts dakwss was as 2

ESOS ES ae re 2

Questions Presented ................. Flies Hye wave © 2

Constitutional and Statutory Provisions {involved ede:

Statement of the Case ...............0. cece eee. 8

Reasons for Granting the Writ .................... 13

EN SALE ES 21

Cases CITED:

Barnes v. United States,

ee 14

Bouie v. Columbia,

ee ees ek) te ka. 19

Calder v. Bull,

3 US (3 Dell) 966 (1708) ..... 220200500555. 19

Cole v. Arkansas,

Mee reeees «eee. 19

Commonwealth v. Bonomo,

396 Pa. 222, 151 A.2d 441 (1959) .......... 15, 18

Commonwealth v. DiFrancesco,

458 Pa. 188, 329 A.2d 204 (1974) .............. 15

Commonwealth v. Foster,

250 Pa. Super. 32, 378 A.2d 438 (1977)......... 10

Commonwealth v. Gearhart,

— Pa. Super. —, 384 A.2d 1321 (1978) ........ 16

TABLE OF CONTENTS

Cases CITED:

Commonwealth v. Kirchner,

233 Pa. Super. 776, 339 A.2d 786 (1975)

SN Dry og PhS caaie hw on Ce Reta 9

Commonwealth v. McNeil,

461 Pa. 709, 337 A.2d 840 (1975) .......... 10, 11

Commonwealth v. Millrood,

233 Pa. Super. 726, 339 A.2d 537 (1975)

(alloc. denied ), cert. denied, 434 U.S. 826 (1977) 9

Commonwealth v. Slaybaugh,

468 Pa. 618, 364 A.2d 687 (1976) ............ 15

Commonwealth v. Sojourner,

— Pa. Super. — (No. 2387 October term, 1976,

filed July 12, 1978 (“Sojourner I”) ............ 1]

Commonwealth v. Sojourner,

— Pa. Super. — (No. 2387 October term, 1976,

filed June 22, 1979) (“Sojourner II”) .......... 11

Commonwealth v. Stawinsky,

234 Pa. Super. 308, 339 A.2d 91 (1975) ........ 9

Cool v. New York,

te were)... 13

County Court v. Allen,

— U.S. —, 99 S. Ct. 2213 (1979) .............. 14

Fletcher v. Peck,

10 U.S. (6 Cranch) 87 (1810) ................ 19

Hankerson v. North Carolina,

= US. aS: 9990 (10TT) 10

Ivan v. New York,

eT es ke. 13

Jackson v. Virginia,

— US. —, 99 S. Ct. 2781 (1979) .............. 13

iii

TABLE OF CONTENTS

Cases CITED:

Kring v. Missouri,

Rr ee FA er lw cas.

Lego v. Twomey,

WE TER MO RTOTAY, ak. KS. Ssvice es

Marks v. United States,

430 U.S. 188 (1977) ....... GPR ee ea

Mullaney v. Wilbur,

ay Oe wen Cs) ee

Patterson v. New York,

ee ee ee ey ecw.

Rabe v. Washington,

ey Pa

Sandstrom v. Montana,

— US. —, 99 S. Ct. 2450 (1979) ........ 8,

Speiser v. Randall,

Oar Ga WAS (1008)... .... cs. ess

Thompson v. Utah,

T10-S: S05 11008) >. eS

Tot v. United States,

EN ks oe ck ws COLNE

Turner v. United States,

SR BR OI MIR io ois we igilneid cinidee mm bibles

United States ex rel. Hickey v. Jeffes,

571 F.2d 762 (3 Cir. 1978) ...............

Winship, In re,

rs Oe CP cee eee ea saeee

iv

TABLE OF CONTENTS

U.S. ConstiTuTION CITED:

Fourteenth Amendment ........................ 3, 19

Act CITED:

Act of April 14, 1972, P.L. 233, No. 64, §1 et seq.,

3S PS. §7O0-101 et seg... sins Seve. 3, 7, 8

Coprs CITED:

DE DBR... GIG 6 ooscceceocieed ae eee 10

8S USC: GRE) . 0 Be ATA BR ae 2

APPENDIX

Appendix A

a rR eee Sie Aha hs la

NS CN oid 5s soph enc seed eee 3a

Appendix B

DENIES: 3. |... os cass a a ee 5a

CUE SS oS Ee ee eee 13a

Appendix C

Sur Petition for Rehearing—Docket No. 78-2119 .. 14a

Sur Petition for Rehearing—Docket No. 78-2123 15a

Appenia Do 0 DERE eee 16a

IN THE

SUPREME COURT OF THE UNITEDSTATES

OcToBER TERM 1979

No.

KENNETH SHALOM MILLROOD,

Petitioner,

vs.

SUPT. LOWELL D. HEWITT and THE

ATTORNEY GENERAL OF THE STATE OF

PENNSYLVANIA

UNITED STATES OF AMERICA ex rel:

JAMES KIRCHNER,

Petitioner,

vs.

W. G. JOHNSTONE, JR., PRESIDENT JUDGE

COURT OF COMMON PLEAS OF LANCASTER

COUNTY, PENNSYLVANIA

D. RICHARD ECKMAN, DISTRICT ATTORNEY

OF LANCASTER COUNTY, PENNSYLVANIA

Joint Petition for Writ of Certiorari to the United

States Court of Appeals for the Third Circuit

Petitioners pray that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for the

Third Circuit in the above entitled cases.

OPINIONS BELOW

The judgment orders of the United States Court of

Appeals for the Third Circuit are unreported and are

printed in Appendix A hereto at p. la-4a. The opinion of

the District Court for the Eastern District of Pennsylvania

is reported at 454 F. Supp. 14 (E.D. Pa. 1978) and is

printed in Appendix B hereto at p. 5a.

JURISDICTION

The judgments of the Court of Appeals were entered

on July 23, 1978 (la-4a). Timely petitions for rehearing

were denied on August 22, 1979 (14a-15a). The jurisdic-

tion of this Court is invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. Does not the due process clause of the Fourteenth

Amendment prohibit a state from requiring the accused in

a criminal prosecution to bear the burden of first producing

some evidence as to the non-existence of an element of the

crime before the prosecution need meet its burden of prov-

ing that element beyond a reasonable doubt?

2. Does not the due process clause of the Fourteenth

ent prohibit a state from retroactively applying

its newly announced burden-shifting rule to accused who

had no reason whatsoever to know when tried that the de-

fense must first come forward with some evidence as to the

non-existence of an element of the crime before the prose-

cution need meet its burden of proving that element be-

yond a reasonable doubt?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Fourteenth Amendment:

. nor shall any State deprive any person of life,

liberty or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of laws.”

The Controlled Substance, Drug, Device and Cosmetic

Act of the Commonwealth of Pennsylvania [Act of April

14, 1972, P.L. 233, No. 64, §1 et seq., 35 P.S. §780-101 et

seq.] which provides in pertinent part:

35 P.S. §780-104: Schedules of controlled substances

The following schedules include the controlled sub-

stances listed or to be listed by whatever official name,

common or usual name, chemical name, or trade name

designated.

(1) Schedule I—In determining that a substance

comes within this schedule, the secretary shall find: a high

potential for abuse, no currently accepted medical yse in

the United States, and a lack of accepted safety for use

under medical supervision. The following controlled sub-

stances are included in this schedule:

(iv) Marihuana.

35 P.S. §780-106: Registration

(a) No person shall operate within this Common-

wealth as a manufacturer, distributor or retailer of con-

trolled substances, other drugs and devices nor sell; offer

for sale nor solicit the purchase of controlled substances,

other drugs and devices nor hold them for sale or resale

4 Constitutional and Statutory Provisions Involved

until such person has registered under this act with the

secretary. Such registration must be renewed annually in

accordance with rules and regulations relating thereto.

(1) Any manufacturer or distributor not operating

an establishment within this Commonwealth, but employ-

ing sales representatives or agents within this Common-

wealth, shall either register as a manufacturer or distribu-

tor as the case may be, or file, in lieu of registration, with

the secretary the names and addresses of such representa-

tives and agents, and shall promptly inform the secretary

of any changes in said list.

(2) Separate registration with the secretary shall be

required annually for each place at which such person

carries on activities as a manufacturer, distributor or re-

tailer within this Commonwealth. The certificate evidenc-

ing such registration shall be conspicuously displayed and

shall not be transferable.

(3) Registrations issued by the secretary or under the

law preceding this act to manufacturers, distributors or

retailers shall continue to be valid for the period issued

and, upon expiration;-shall be renewed in the manner pro-

vided for renewal of registration issued pursuant to this

section. Nothing contained herein shall be construed to

require the registration hereunder of any practitioner regis-

tered or the appropriate State board, nor to require the

separate registration of agents or employes of persons

registered pursuant to the provisions of this section, or

of sales representatives or agents of manufacturers or

distributors not operating an establishment within this

Commonwealth whose names and addresses are on file

with the secretary: Provided, however, That all persons

registered pursuant to this section, whether located within

this Commonwealth or not, shall be deemed to have ac-

cepted and shall be subject to all provisions of this act.

Constitutional and Statutory Provisions Involved 5

(b) No person shall operate as a manufacturer of

controlled substances or other drugs unless they are manu-

factured under the supervision of a registered pharmacist,

chemist or other person possessing at least five years’ expe-

rience in the manufacture of controlled substances, or other

drugs or such other person approved by the secretary as

qualified by scientific or technical training or experience

to perform such duties of supervision as may be necessary

to protect the public health and safety.

(c) Each application for registration as a manufac-

turer, distributor or retailer shall be accompanied by a fee

to be set by the secretary. Applications shall be on forms

prescribed by the secretary. Registration shall be renewed

annually and applications therefor shall be accompanied

by the same fee as ‘or initial applications.

(d) Initial registration shall become effective at noon

on the sixtieth day after application therefor is filed: Pro-

vided, however, That the secretary shall have authority to

issue a registration or to issue an order denying such

registration pursuant to subsection (e) hereof at any time

prior to the expiration of such sixty day period. Renewal

of registration shall be effective upon certification by the

secretary that the applicant has met all requirements for

such renewal.

(e) The secretary may refuse the initial registration

and may, after notice and hearing pursuant to the Adminis-

trative Agency Law, suspend registration (i) of any person

who has made material false representation in the applica-

tion for registration; (ii) of any manufacturer or distributor

who has been convicted of a violation of any law of this

Commonwealth or of the United States relating to con-

trolled substances, if such refusal shall be necessary for

the protection of the public health and safety; (iii) of any

6 Constitutional and Statutory Provisions Involved

manufacturer or distributor who knowingly employs in a

capacity directly connected with the preparation, handling

or sale of controlled substances any person convicted of a

violation of the laws of this Commonwealth or of the

United States relating to the sale, use or possession of con-

trolled substances, if such refusal shall be necessary for the

protection of the public health and safety.

(f) If the secretary takes any action refusing registra-

tion or revoking or suspending registration under subsec-

tions (e) and (f), the aggrieved party may, within fifteen

days after the date upon which a copy of the order is de-

livered to the address indicated on the application or the

registration whichever is applicable, petition the board for

review. The board shall, within thirty days, grant a hear-

ing and, as soon thereafter as practicable, adopt, modify or

reject the action of the secretary. Any action by the board

shall be deemed an adjudication to which the provisions of

the Administrative Agency Law, as amended, shall be

applicable.

(g) The following persons need not register and may

lawfully possess controlled substances under this act:

(1) an agent or employe of any registered manufac-

turer, distributor, dispenser or any person listed in lieu of

registration with the secretary if he is acting in the usual

course of his business or employment;

(2) a common or contract carrier or warehouseman,

or an employe thereof, whose possession of any controlled

substance is in the usual course of business or employment;

(3) an ultimate user or a person in possession of any

controlled substance pursuant to a lawful order of 1 prac-

titioner or in lawful possession of a Schedule V suostance.

Constitutional and Statutory Provisions Involved 7

35 P.S. §780-113: Prohibited acts; penalties

(a) The following acts and the causing thereof within

the Commonwealth are hereby prohibited:

(30) Except as authorized by this act, the manufac-

ture, delivery, or possession with intent to manufacture or

deliver, a controlled substance by a person not registered

under this act, or a practitioner not registered or licensed

by the appropriate State board, or knowingly creating,

delivering or possessing with intent to deliver, a counter-

feit controlled substance.

STATEMENT OF THE CASE

This petition presents the important issue left open in

Sandstrom v. Montana, U.S. _ , 99 S. Ct. 2450 (1979),

where this Court found it unnecessary to consider whether

the accused might be constitutionally required to meet the

initial burden of going forward with some evidence as to

an essential element of the crime charged before the prose-

cution need meet its burden of proving the element beyond

a reasonable doubt, and the further question—if constitu-

tional—whether such a burden-shifting rule may be applied

to persons tried before its announcement.

This case came to the federal courts upon application

for a writ of habeas corpus there, following state court con-

victions which were sustained on appeal.

Petitioners were jointly tried, convicted and sentenced

to prison upon a charge of possession with intent to deliver

ijuana “by a person not registered” under Pennsylva-

nia's Controlled Substance, Drug, Device and Cosmetic

Act, which requires that those who deal in such controlled

substances annually register with the Secretary of Health

and imposes criminal penalties upon those who deal in such

substances without being registered. 35 P.S. §780-106,

780-113 (a) (30). The statute provides in pertinent part:

35 P.S. §780-113: Prohibited acts; penalties

(a) The folowing acts and the causing thereof

within the Commonwealth are hereby prohibited:

(30) Except as authorized by this act, the manu-

facture, delivery, or possession with intent to manu-

facture or deliver, a controlled substance by a person

not registered under this act, or a practitioner not

registered or licensed by the appropriate State board,

or knowingly creating, delivering or possessing with

intent to deliver, a counterfeit controlled substance.

Statement of the Case )

At trial, there was a complete absence of proof from

either side on the question of registration. Defendants

contended—at the trial level’ and at every available state

appellate level "that non-registration was an element of

the crime as to which the Commonwealth had the burden

of proof beyond a reasonable doubt. Throughout these

same proceedings, the Commonwealth successfully main-

tained that the burden of proof was on the accused.

By virtue of the decision in In re Winship, 397 U.S. 358

(1970), placement of the burden of proof depended largely

upon whether non-registration was an element of the crime

under Pennsylvania law. The trial judge ruled that non-

registration “is not an element of the offense charged

against the defendant and there is no burden on the Com-

monwealkth to prove a lack of registration” (18a). On

appeal to the Superior Court of Pennsylvania, defendants

continued to preserve their federal constitutional claim that

they could not be required to bear the burden of proving

registration, that absence of registration is an essential

element of the crime, and that failure of the State to pre-

sent any evidence on that issue entitled them to be dis-

charged. But, on April 22, 1975, in an unrelated case, the

Superior Court of Pennsylvania reached and decided the

precise issue against the petitioners. Commonwealth v.

Stawinsky, 234 Pa. Super. 308, 339 A.2d 91 (1975). In

Stawinsky the Superior Court held that non-registration

was not an element of the crime in a controlled substance

prosecution such as that here, and that the burden of proof

as to registration: was on the accused. As a result of Sta-

winsky, the Superior Court of Pennsylvania affirmed the

judgments here without opinion.”

1. By demurrer to the evidence, motion for directed verdict, and motion

in arrest of judgment.

2. Commonwealth v. Kirchner, 233 Pa. Super. 776, 339 A.2d 786 (1975)

(alloc. denied); Commonwealth v. Millrood, Pa. S . 726, 339 A.2Qd

537 (1975) (alloc. denied), cert. denied, 434 U.S. 826 (1977).

3. See footnote two.

10 Statement of the Case

Petitioners then sought to have the Supreme Court of

Pennsylvania review the matter, but that Court—after con-

sidering the petition for almost two years—refused to enter-

tain an appeal from the Superior Court’s decision.*

In the meanwhile, however, the Supreme Court of

P-nnsylvania did decide that absence of a license is an e$-

sential element of the crime of carrying a firearm without

a license which the Commonwealth must prove beyond a

reasonable doubt, and reversed a conviction for carrying a

firearm without a license where the record did not contain

any evidence relating to defendant's lack of#license for the

weapon. Commonwealth v. McNeil, 461 Pa. 709, 337

A.2d 840 (1975).

Millrood alone petitioned this Court for a writ of cer-

tiorari, but that was denied on October 3, 1977.5

Defendants next sought federal habeas corpus relief

in accordance with 28 U.S.C. §2254 arguing that McNeil

supported their position.°

In its opinion denying habeas corpus relief, the Dis-

trict Court acknowledged that if the Commonwealth had

the burden of establishing non-registration beyond a rea-

sonable doubt, the writ should be granted, but held that

4. See footnote two.

5. See footnote two.

6. While defendants’ trial took place before McNeil, it took place after

Winship had held that due process prevents conviction absent beyond

a reasonable doubt of every essential element of the crime charged, and

defendants must be given the benefit of the Winship holding. United States

ex rel. Hickey v. Jeffes, 571 F.2d 762 (3 Cir. 1978). In tion, this Court

has recently held that the requirement of Winship and Mullaney v. Wilbur, 421

U.S. 684 (1975), that the oe prove every fact necessary to constitute

the crime beyond a reasonable doubt, is to receive full retroactive n.

Hankerson v. North Carolina, US. , 97 S. Ct. 2339 (1977). Following

this lead, the Superior Court of Pennsylvania reversed its own earlier decisions

and now acknowledges that cases such as McNeil must be applied retroactively.

Commonwealth v. Foster, 250 Pa. Super. 32, 378 A.2d 438, 439 (1977).

ee

Statement of the Case ll

the Stawinsky decision established for Pennsylvania that

non-registration was not an element of the specific crime

charged, and therefore that the Commonwealth did not

have the burden of establishing this element beyond a rea-

sonable doubt. After the District Court’s decision, how-

ever, and while the case was on appeal to the United States

Court of Appeals for the Third Circuit, the Superior Court

of Pennsylvania, in Commonwealth v. Sojourner, Pa.

Super. (No. 2387 October term, 1976, filed July 12,

1978) (“Sojourner I”), reversed its own thinking, con-

cluded in light of McNeil, supra, that Stawinsky could no

longer be regarded as good law, and held that non-registra-

tion is an element of the crime which the Commonwealth

has the burden of proving beyond a reasonable doubt. . . .

This is the identical position long espoused by petitioners.

Upon reargument, however, the Superior Court modi-

fied Sojourner I. While reaffirming that Stawinsky was bad

law and that the burden of proving non-registration was

upon the Commonwealth, the Superior Court for the first

time in Pennsylvania held that the Commonwealth need

not meet its burden of proving non-registration until the

accused first met the initial burden of coming forward with

some evidence of registration sufficient to activate the Com-

monwealth’s burden of proving that element beyond a rea-

sonable doubt. Commonwealth v. Sojourner, Pa. Super.

(No. 2387 October term, 1976, filed June 22, 1979)

(“Sojourner IT”).

Relying entirely upon Sojourner II, the United States

Court of Appeals for the Third Circuit then affirmed the

judgment of the District Court denying habeas corpus

relief on the new ground that petitioners had failed to acti-

vate the Commonwealth’s trial burden of proving non-reg-

istration beyond a reasonable doubt by first presenting

12 Statement of the Case

some evidence of registration—albeit Sojourner II’s burden-

shifting rule was not announced until some six years after

the trial of petitioners actually took place.

This petition for a writ of certiorari followed.

13

REASONS FOR GRANTING THE WRIT

The Constitution prohibits the conviction of anyone

except upon proof beyond a reasonable doubt of every

element of the crime charged. In re Winship, 397 U.S.

358 (1970); Jackson v. Virginia, — U.S. —, 99 S. Ct. 2781

(1979). This standard of proof beyond a reasonable dou! |

plays a vital role in the American scheme of criminal pro-

cedure, operates to give concrete substance to the pre-

sumption of innocence, ensures against unjust convictions,

and reduces the risk of factual error in criminal proceed-

ings. In re Winship, supra. It symbolizes the significance

that our society attaches to the criminal sanction and to

liberty itself, and has prevailed in our courts “at least from

our early years as a Nation.” Id., at 361, 372.

In decisions subsequent to Winship this Court has

never departed from this standard of proof or from place-

ment of the burden of proof upon the prosecution. See,

e.g., Ivan v. New York, 407 U.S. 203 (1972); Lego v.

Twomey, 404 U.S. 477 (1972); Mullaney v. Wilbur, 421

U.S. 684 (1975); Patterson v. New York, 432 U.S. 197

(1977); Cool v. New York, 409 U.S. 100 (1972); Sand-

strom v. Montana, supra; Jackson v. Virginia, supra.

This case presents a perfect record for this Court to

consider whether these venerable principles must give way

to a state law which relieves the prosecution of its burden

of persuasion as to an element of the crime unless the ac-

cused first produces some evidence to the contrary.

Sojourner II established for Pennsylvania that “non-

registration” is an essential element of the crime here

charged—a~proposition which these accused had unsuc-

cessfully maintainéd at the trial level and at every step

of the way thereafter. At the same time, however, So-

journer II also held that the Commonwealth need not meet

14 Reasons for Granting the Writ

its burden of proving non-registration until the accused

first met the initial burden of coming forward with some

evidence of registration sufficient to activate the Common-

wealth’s burden of proving that element beyond a reason-

able déubt.’ If the accused does not meet that burden

of production, the trial judge either deletes “non-registra-

tion” as an element of the crime the jury must find proved

beyond a reasonable doubt, or directs the jury to consider

“non-registration” as a proved fact.

In Sandstrom v. Montana, supra, this Court held that

a conclusive presumption as to an element of the crime or

a rebuttable presumption which had the effect of shifting

the burden of persuasion to the accused would not pass

constitutional muster, but found it unnecessary to con-

sider what kind of constitutional analysis would be appro-

priate for a presumption rebuttable by defense production

of “some” contrary evidence. This case presents the log-

ical next step in the continuing delineation of the mean-

ing of Winship, and—because of the clarity of the record—

offers an ideal vehicle for this Court to provide the

authoritative guidance needed by federal and state courts

confronting the constitutional validity of the kind of bur-

den-shifting procedure here involved.

Unfortunately, the summary judgment orders of the

Court of Appeals ignored the fact that the Pennsylvania

Supreme Court had already denounced the burden-shift-

ing procedure adopted in Sojourner II, and further failed

to consider the entirely separate question whether federal

constitutional law prohibits such burden-shifting. Instead,

7. In effect, Sojourner II creates a mandatory presumption of non- -

tration even though there be no logical cine whatever nanny of

which is proved and that which is presumed. Such a presumption passes

none of the standards of constitutional validity heretofore adopted by this

Court. E.g., Tot v. United States, 319 U.S. 463 (1943); Turner v. United

States, 396 U.S. 489 (1970); Barnes v. United States, 412 U.S. 837 (i973);

County Court cv. Allen, — U.S. —, 99 S. Ct. 2213 (1979).

Reasons for Granting the Writ 15

the Court of Appeals simply accepted Sojourner II as the

governing law, found that the accused had failed to acti-

vate the prosecution’s burden of proof and on that dif-

ferent ground affirmed the judgments of the District Court

denying these petitioners relief.

Had the Court of Appeals analysed Pennsylvania law

it would have found that the Supreme Court of Pennsyl-

vania itself had left no doubt that the burden of produc-

tion, as well as the burden of persuasion, remains upon

the Commonwealth throughout with regard to every es-

sential element of the crime charged and can never be

shifted to the accused. Commonwealth v. Bonomo, 396

Pa. 222, 229-231, 151 A.2d 441, 445-446 (1959); Com-

monwealth v. DiFrancesco, 458 Pa. 188, 193-194 n.3, 329

A.2d 204, 207-208 n.3 (1974); Commonwealth v. Slay-

baugh, 468 Pa. 618, 364 A.2d 687 (1976). According to

the Supreme Court of Pennsylvania, such burden-shifting

devices as that adopted in Sojourner II are the equivalent

of a directed verdict and as such in violation of federal

and state requirements that the Commonwealth prove

every element of the crime beyond a reasonable doubt,

that all men are innocent until proved guilty, and that no

one criminally accused may be compelled to testify. Id.

The language used in DiFrancesco is representative of the

view of Pennsylvania's highest court:

“ . . [defense] failure to meet this burden of produc-

tion will normally result in binding instructions on

the issue of the presumed fact’s existence in favor of

the party [prosecution] invoking the presumption.

But the notion of a directed verdict against a criminal

defendant is contrary to accepted tenets of criminal

justice. Placing the burden of production on a de-

fendant under the threat of such a sanction would

run afoul of the presumption of innocence as well

as the defendant's privilege of declining to testify.

16 Reasons for Granting the Writ

Thus, where the presumed fact constitutes an element

of the crime charged, the inference authorized by a

presumption can never be compelled by the Court.”

458 Pa. at 193 n.3, 329 A.2d at 207 n.3.

Apparently the Superior Court in Sojourner II mis-

read Patterson v. New York, 432 U.S. 197 (1977), as au-

thorizing the burden-shift it adopted * and took Patterson

as its authority to ignore the decisions of its own Supreme

Court decided on both state and federal grounds. In doing

so, however, the Superior Court made no mention what-

ever of its own post-Patterson decision, Commonwealth v.

Gearhart, — Pa. Super. —, 384 A.2d 1321 (1978), in which

it followed DiFrancesco, and itself condemned any device

whereby the burden of producing evidence as to an ele-

ment of a crime was shifted to the accused. The Superior

Court said in Gearhart:

“In criminal cases, statutory presumptions and com-

mon law inferences may be used as evidentiary de-

vices to aid the Commonwealth in proving an element

of an offense beyond a reasonable doubt. Common-

wealth v. Bonn, 244 Pa. Super. 315, 368 A.2d 738

(1976). However, if the fact to be presumed com-

prises an element of the alleged offense, the court may

never compel the inference, Commonwealth v.

DiFrancesco, 458 Pa. at 198, n.3, 329 A.2d 204, for

that would amount to a shifting of the burden of pro-

ducing evidence to the defendant and, in effect, a

directed verdict of guilty if the accused fails to re-

but.2 Directed verdicts of guilty in criminal cases

negate the presumption of innocence and, as such, are

never permissible. Commonwealth v. Turner, 456 Pa.

116, 317 A.2d 298 (1974).

2. A discussion of the weight of a presumption in a

criminal case can be found in McCormick, Evidence

804-805 (2d ed. 1972). In relevant part he writes,

8. As pointed out in Judge Spaeth’s concurring opinion, Patterson is an

“affirmative defense case” not an “element of the crime case.”

oo

Reasons for Granting the Writ 17

“In criminal cases, however, there are niles that

traditionally have been labeled presumptions, even

though they do not operate to shift even the burden

of producing evidence. A true shifting of the bur-

den of producing evidence to the defendant in a

criminal case would mean that the court would be

‘tampelled to direct the jury to find against him

with regard to the presumed fact if he fails to in-

troduce sufficient proof on the issue . . . . [A] di-

rected verdict on a preemptory ruling against the

accused in a criminal case, even as to a single ele-

ment of the crime, is abhorrent to the criminal law.

Therefore, modern draftsmen, while retaining the

term, presumption for criminal cases, have re-

duced the effect of presumption in those cases to

that of a standardized inference. The jury is per-

mitted but not required to accept the existence of

the presumed fact even in the absence of contrary

evidence.’ Id. at 804 [Footnotes omitted.]” Id. at

1323.

Entirely apart from Pennsylvania law on the issue,

this Court, in Sandstrom, although reserving the question

for future review, specifically noted:

“. . . that the effect of a failure to meet the production

burden is significantly different for the defendant and

on. When the tion fails to meet it,

a directed verdict in favor of the defense results.

Such a consequence is not possible upon a defendant's

failure, however, as verdicts may not be directed

against defendants in criminal cases. United States

v. Martin Linen Supply Co., 430 U.S. 564, 572-573,

97 S. Ct. 1349, 1355, 51 L.Ed 2d 642 (1977); Bro-

therhood of Carpenters v. United States, 330 U.S. 395,

408, 67 S. Ct. 775, 782, 91 L.Ed. 973 (1947); Mims v.

United States, 375 F.2d 135, 148 (CA5 1967).” Id.,

at , 99S. Ct. at 2455 n5.

Years earlier, in Speiser v. Randall, 357 U.S. 513

(1958), this Court observed:

18 Reasons for Granting the Writ

“There is always in litigation a margin of error, repre-

senting error in factfinding, which both parties must

take into account. Where one party has at stake an

interest of transcending value—as a criminal defend-

ant his liberty—this margin of error is reduced as

to him by the process of placing on the other party

the burden of producing a sufficiency of proof in the

first instance, and of persuading the factfinder at the

conclusion of the trial of his guilt beyond a reason-

able doubt. Due process commands that no man shall

lose his liberty unless the Government has borne the

burden of producing the evidence and convincing

the factfinder of his guilt. Tot v. United States, 319

U.S. 463 (1943).” Id. at 525-526.

Thus, while this Court’s direction seems clear the

question was left open in Sandstrom and ought to be de-

finitively resolved early because of its importance to federal

and state criminal procedure.

But, even if the Superior Court's opinion in Sojourner

II is found to be constitutionally valid under state and

federal law, retroactive application of the Superior Court's

newly announced burden-shifting rule to these accused—

who had no reason whatsoever to know that they must first

come forward with some evidence of registration in order

to activate the Commonwealth’s burden of proving non-

registration—would itself be a violation of due process. At

the time this case was tried the defense was entitled to

rely upon the decision of the Pennsylvania Supreme Court

in Commonwealth v. Bonomo, supra, holding that the bur-

den of going forward with evidence as to any essential ele-

ment of the crime charged could never be shifted to the

accused. Moreover, at trial, and for all the years up to

Sojourner II, the only question was which side had the

burden of persuasion—the burden of production was never

at issue. The prosecution successfully convinced the trial

judge to place the burden of proof as to non-registration

Reasons for Granting the Writ 19

upon the defendants and sustained that position on ap-

peal. Having now been ruled wrong after all these years,

the prosecution takes refuge in the newly announced pro-

duction-shifting rule and the failure of these defendants

to meet that lesser burden. But, the defense had neither

notice nor reason to undertake the lighter production bur-

den when far more was required of them, and their failure

to do so does not mean that they could not have shouldered

the lesser burden of producing “some” evidence of reg-

istration.

The due process guaranteed by the Fourteenth

Amendment prohibits judicial action making adverse

changes in penal laws which would violate the Ex Post

Facto Clause if attempted by the legislature. Marks v.

United States, 430 U.S. 188, 191-92 (1977). The classic

statement of these prohibited changes is found in Calder

v. Bull, 3 U.S. (3 Dall.) 386 (1798). One of the four

classes of legislation condemned in Calder is: “Every law

that alters the legal rules of evidence, and receives less, or

different testimony than the law required at the time of

the commission of the offence, in order to convict the of-

fender.” Id. at 390. As Chief Justice Marshall put it, “An

ex post facto law is one which renders an act punishable

in a manner in which it was not punishable when it was

committed.” Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 138

(1810). Thus, this Court has struck down as ex post facto

several procedural changes lightening the prosecutorial

burden. E.g., Thompson v. Utah, 170 U.S. 343 (1898);

Kring v. Missouri, 107 U.S. 221 (1883). More recently

this Court has reversed convictions which were obtained

by construing the criminal statute under which the de-

fendant was charged in a way not known or apparent at

the time of the alleged offense. Rabe v. Washington, 405

U.S. 313 (1972); Bouie v. Columbia, 378 U.S. 347 (1964);

cf. Cole v. Arkansas, 333 U.S. 196, 201 (1948). A new

20 Reasons for Granting the Writ

judicial decision affecting the burden of proof has the very

same vice as one reconstruing the elements of the offense,

when retroactively applied to uphold a conviction by chang-

ing the ground rules for trial long after the trial is over.

Permitting the prosecution to escape its constitutional

burden of proving every element of the crime charged

beyond a reasonable doubt because the accused—held by

the trial judge to have the burden of persuasion as to one

of the elements—did not first meet a burden of production

as to that element which was contrary to the pronounce-

ments of the Supreme Court of Pennsylvania and which

was not announced until some five years after the trial,

completely denigrates the values found critical in Win-

ship and the cases which followed it.

In Sandstrom a state conviction was reversed because

the jury may reasonably have misunderstood the burden

of proof and what was required of each side with regard

thereto. The outcome can be no different where it is the

accused who has no reason to understand that something

is*required of the defense before the prosecution need

meet its burden of proof. Any other result would be ut-

terly faithless to the rationale of Winship.

21

CONCLUSION

This petition deals with a critical area of criminal

procedure and issues which require decision. Any of the

reasons here advanced warrants granting the writ, but in

sum they fully justify plenary review.

Respectfully submitted,

/s/ Donald J. Goldberg

DONALD J. GOLDBERG

Attorney for Petitioner,

Kenneth Shalom Millrood

/s/ John Rogers Carroll

JOHN ROGERS CARROLL

Attorney for Petitioner,

James Kirchner

APPENDIX A

UNITED STATES COURT OF APPEALS

For THE TuHirD CIRCUIT

No. 78-2119

KENNETH SHALOM MILLROOD,

Appellant,

vs.

SUPT. LOWELL D. HEWITT and THE ATTORNEY

GENERAL OF THE STATE OF PENNSYLVANIA.

APPEAL FROM THE UNITED STATES Districr Court

FOR THE EASTERN DisTRICT OF PENNSYLVANIA

(D. C. Civ No. 77-3572)

Submitted Under Third Circuit Rule 12(6)

June 4, 1979

Before: ALDISERT, VAN DUSEN and GIBBONS,

Circuit Judges

JUDGMENT ORDER

After considering the contention raised by appellant,

to-wit, that where state law provides that non-registration

is an essential element of the crime of “possession with

intention to . . . deliver a controlled substance by a per-

son not registered,” the due process clause of the Four-

teenth Amendment invalidates a state conviction obtained

without there being any proof at all as to non-registration,

and considering that appellant failed:to present “some

la

2a Judgment Order

evidence of authorization sufficient to activate the risk of

nonpersuasion for the Commonwealth” as required by

Commonwealth v. Sojourner, — Pa. Super. — (No. 2387

October Term, 1976, filed June 22, 1979) (typescript opin-

ion at 9), it is

ADJUDGED AND ORDERED that the judgment of

the district court be and is hereby affirmed.

Costs taxed against appellant.

BY THE COURT,

/s/ R. J. Aldisert

Circuit Judge

ATTEST:

/s/ Thomas F. Quinn

THOMAS F. QUINN, Clerk

DATED: July 23, 1979.

UNITED STATES COURT OF APPEALS

For THE THirD CIRCUIT

No. 78-2123

UNITED STATES OF AMERICA ex rel:

JAMES KIRCHNER,

Appellant,

vs,

W. G. JOHNSTONE, Jr., PRESIDENT JUDGE, COURT

OF COMMON PLEAS OF LANCASTER COUNTY,

PENNSYLVANIA, D. RICHARD ECKMAN, DISTRICT

ATTORNEY OF LANCASTER COUNTY,

PENNSYLVANIA.

APPEAL FROM THE UNITED STATES District CouRT

FOR THE EASTERN District OF PENNSYLVANIA

(D.C. Civi. No. 75-3689 )

Submitted Under Third Circuit Rule 12(6)

June 4, 1979

Before: ALDISERT, VAN DUSEN and GIBBONS,

Circuit Judges

JUDGMENT ORDER

After considering the contention raised by appellant,

to-wit, that the lower court's denial of appellant’s petition

for writ of habeas corpus was improper because the state

trial court’s construction and application of § 13(a) (30)

of the Pennsylvania Controlled Substance, Drug, Device

and Cosmetic Act, 35 P.S. § 780-101 et seq., violated ap-

3a

da Judgment Order

pellant’s federal due process rights by requiring him to

bear the burden of proof on the issue of registration under

a statutory charge of “possession with intent to . . . deliver

a controlled substance by a person not registered under

this act,” and considering that appellant failed to present

“some evidence of authorization sufficient to activate the

risk of nonpersuasion for the Commonwealth” as required

by Commonwéalth v. Sojourner, — Pa. Super. — (No. 2387

October Term, 1976, filed June 22, 1979) (typescript opin-

ion at 9), it is

ADJUDGED AND ORDERED that the judgment of

the district court be and is hereby affirmed.

Costs taxed against appellant.

BY THE COURT,

/s/ Aldisert

Circuit Judge

ATTEST:

/s/ Thomas F. Quinn

THOMAS F. QUINN, Clerk

DATED: July 28, 1979.

APPENDIX B

UNITED STATES DISTRICT COURT

For THE EASTERN DISTRICT OF PENNSYLVANIA

Civit ACTION

No. 75-3689

UNITED STATES OF AMERICA ex rel.

JAMES KIRCHNER

DS.

W. G. JOHNSTONE, Jr., PRESIDENT JUDGE, COURT

OF COMMON PLEAS OF LANCASTER COUNTY,

PENNSYLVANIA, et al.

Civit ACTION

No. 77-3572

KENNETH SHALOM MILLROOD

vs.

SUPERINTENDENT LOWELL D. HEWITT and

THE ATTORNEY GENERAL OF THE

STATE OF PENNSYLVANIA

MEMORANDUM

(Filed June 24, 1978)

June 22, 1978.

BRODERICK, J.

Petitioners James Kirchner and Kenneth Shalom Mil-

rood were tried and convicted in the Court of Common

5a

6a Appendix B

Pleas of Lancaster County, Pennsylvania upon the charge

of possession with intent to deliver marijuana and conspir-

acy 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

18 U.S.C. §2254' contending that their constitutional

rights were violated in that they were convicted of violat-

ing 35 P.S. §780-113(a) (30) even though the Common-

wealth did not prove that they were not registered under

the Act or registered or licensed by the appropriate State

board.”

35 P.S. §780-113 provides in pertinent part:

(a) The following acts and the causing thereof

within the Commonwealth are hereby prohibited:

(30) Except as authorized by this act, the manu-

facture, delivery, or possession with intent to manu-

facture or deliver, a controlled substance by a person

not registered under this act, or a practitioner not reg-

istered or licensed by the appropriate State board, or

knowingly creating, delivering or possessing with in-

tent to deliver, a counterfeit controlled substance.

35 P.S. §780-121 provides:

In any prosecution under this act, it shall not be nec-

essary 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.

1. 18 U.S.C. §2254 provides in pertinent part:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district

court shall entertain an application for a writ of habeas corpus in behalf

of a person in custody pursuant te the judgment of a State court only on

the ground that he is in custody in violation of the Constitution or laws

or treaties of the United States.

2. Petitioners raised other grounds for relief in their petitions, but waived

them at oral argument.

| |

Appendix B 7a

At their trial, no evidence was produced by the Common-

wealth 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 85 P.S. §780.118(a)(30). If it is, the

Commonwealth had the burden of establishing non-regis-

tration beyond a reasonable doubt, and the petitioners’

writs should be granted.

As the Supreme Court has stated:

[t]he 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 (1970); see also, Patter-

son v. New York, — U.S. —, 97 S. Ct. 2319, 2327 (1977);

United States of America ex re®tickey v. Jeffes, 571 F.2d

762, 764 (3d Cir. 1978).

When ruling on a petition for habeas corpus in connec-

tion with the application of a state statute, a federal dis-

trict court takes the statute with the interpretation placed

upon it by the courts of that state “as though that inter-

pretation had been written into the statute by the state

8a Appendix B

legislature itself.” United States v. Deegan, 294 F. Supp.

1347, 1850 (S.D.N.Y. 1969) (footnote omitted); Schmidt

v. Hewitt, No. 77-1284 at 6 (3d Cir., filed February 24,

1978). As stated by the Supreme Court in Mullaney v.

Wilber, 421 U.S. 684, 691 (1975), “state courts are the

ultimate expositors of state law . . . and [federal courts]

are bound by their constructions except in extreme cir-

cumstances.... Hallowell v. Keve, 555 F.2d 108, 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 consid-

ered this very statute. Commonwealth v. Stawinsky, 339

A.2d 91 (Pa. Super. 1975).* Stawinsky, like petitioners

in the instant case, was charged with delivery of a con-

3. In determining the meaning of a state statute, a federal court is bound

by the interpretation given the statute by the state’s hi court. Turco

v. State of Maryland, 324 F. Supp. 61, 65 (D.Md. 1971); see Schmidt v.

Hewitt, No. 77-1284 (3d Cir., Rea February 24, 1978). The Stawinsky

decision was by the Pennsylvania Superior Court and not the Supreme Court

of Pennsylvania. However, in Pennsylvania the Superior Court

exclusive appellate jurisdiction of all a from final orders of the

courts of common pleas, of nature of the controversy or

the amount involved, except such classes of appeals as are by any sec-

tion of this act within the exclusive jurisdiction of the Supreme Court

of the Commonwealth Court.

17 P.S. §211.302 (Supp. 1978-79); Commonwealth v. McCutchen, 369 A.2d

291, 292 (Pa. Super. 1976). The Supreme Court of Pennsylvania has a

discretio right of review of final of the Superior Court. 17 P.S.

§211.204(a). The Stawinsky appeal concerned matters exclusively within

the appellate jurisdiction of the Su Court. The Supreme Court declined

to review the decision. It is unclear whether the Superior Court’s decision

in a matter over which it has exclusive appellate jurisdiction (subject to

review at the discretion of the Supreme Count) constitutes a binding ion

on this Court. However, inasmuch as we feel that the Supreme Court of

Pennsylvania would reach the same result as the Stawinsky court, particu-

larly since it declined allocatur, we need not decide this issue. See Turco,

324 F. Me at 65; cf. bey wave Federal as bey Peep tell Further-

more, the Supreme Court of Pi vania recen 0 ee tc

reverse the holding of the Sta court in the petitions for i oca ar filed

by both Millrood and Kirchner in their direct appeals from their conviction.

The Supreme Court denied allocatur in each case.

Appendix B 9a

trolled substance in violation of 385 P.S. §780(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:

another way of putting this question is to ask whether

the exemptions cover an essential element of the

crimes defined by §§13(a)(16) and 13(a)(80). If

they do, the burden of proving them may not be

placed on the defendant.

The answer to this question is reached when §13

(a)(14) is compared with §§18(a)(16) and 13(a)

(30). Section 13(a)(14) applies only to a limited

group of people (licensed practitioners) and was en-

acted to prevent this group from engaging in a par-

ticular kind of conduct, which is described in the

“except” clause (prescription without examination).

Membership in the limited group (status) is presumed

in any prosecution under §13(a)(14), and proof of

non-membership would only get the accused into

deeper trouble, for the forbidden conduct by a non-

practitioner would be worse than that conduct by a

practitioner. Sections 13(a)(16) and 13(a) (30), on

the other hand, apply generally to everyone. The

exemption clauses in those sections do not refer to

conduct, i.e., to essential elements of the crimes (pos-

session, sale, manufacture, or delivery), but to per-

sons who are to be exempted (persons “registered

under this act”). Thus the exemption applies if the

accused has attained a certain status; it has nothing

to do with the conduct that would constitute a crime

if performed by someone else. Status does not con-

10a Appendix B

stitute an essential element of the crimes. Rather, it

only provides a personal defense. Thus the burden

of proving it can be constitutionally shifted to the

person claiming it.

Id. at 94-5. (footnote omitted).

Petitioners concede that the issue involved in the in-

stant case is precisely that decided in Stawinsky. Peti-

tioners 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 Pennsyl-

vania. McNeil involved, among other things, a prosecu-

tion 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 there-

fore that the Commonwealth had the burden of establish-

ing this element beyond a reasonable doubt. The distinc-

tion between McNeil and Stawinsky is obvious, each

involved separate offenses which have been construed by

Pennsylvania courts as entailing different essential ele-

ments of statutory crimes.

As stated in Commonwealth v. Stoffan, 323 A.2d 318,

323-24 (Pa. Super. 1974):

The probiem of deciding whether a particular

clause states a fact that constitutes a necessary element

of the crime is a problem of statutory construction.

The answer depends on what behavior the General

ee

Appendix B lla

ring to such behavior states a necessary element of

the crime.

In considering this problem, a useful case is Com-

monwealth v. Neal, 78 Pa. Super. 216 (1922). There

the statute in question made it a crime “for any per-

son . . . to engage in the practice of medicine . . .

except those hereinafter exempted... .” In the

indictment the Commonwealth had not alleged

that the defendant was not one of those exempted.

Whether such an allegation was necessary depended

on whether the exemption clauses referred to facts

constituting elements of the crime. If they did, the

allegation was necessary. In deciding whether the

exemption clauses referred to elements this court

enunciated the following test:

When a statute defining an offense contains an ex-

ception, in the enacting clause, which is so incor-

porated with the language defining the offense that

the ingredients of the offense cannot be accurately

and clearly described if the exception is omitted,

the rules of good pleading require that an indict-

ment founded upon the statute must allege enough

to show that the accused is not within the exception,

but if the language of the clause defining the of-

fense is so entirely separable from the exception

that the ingredients constituting the offense may be

accurately and clearly defined without any refer-

ence to the exception, the pleader may safely omit

any such reference, as the matter contained in the

exception is matter of defense and must be shown

by the accused.

Id, at 219.

Assembly intended to prohibit. Any language refer-

|

y

The Pennsylvania Superior court in Stawinsky reviewed

the statute involved in the instant petitions and determined

12a Appendix B

that registration is an exception and not an essential ele-

ment 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 in-

consistent with Stawinsky, particularly in view of the fact

that the Supreme Court of Pennsylvania denied allocatur

in Stawinsky and likewise denied allocatur to both Kirsch-

ner and Millrood in this case subsequent to its decision in

McNeil.

The construction of 35 P.S. §780-113(a)(30) by the

Pennsylvania courts heretofore discussed does not violate

petitioners’ constitutional rights. United States v. Rosen-

berg, 515 F.2d 190, 199 (9th Cir.), cert. denied, 423 USS.

1030 (1975); Tritt v. United States, 421 F.2d 928, 929-30

(10th Cir. 1970); United States v. Benish, 389 F. Supp.

557, 560 (W.D.Pa.), aff'd, 523 F.2d 1051 (8d Cir. 1975);

cert. denied, 424 U.S. 954 (1976); cf. Patterson v. New

York, US. , 97S. Ct. 2319 (1977); United States v.

Byrne, 422 F. Supp. 147, 162 (E.D.Pa. 1976), affd in part,

reod in part on other grounds, 560 F.2d 610 (3d Cir.

1977), cert. denied, US. (1978).

Accordingly, we will enter an Order denying petitioners’

motions for habeas corpus.

UNITED STATES DISTRICT COURT

For THE EASTERN Districr OF PENNSYLVANIA

Civi. ACTION

No. 75-3689

UNITED STATES OF AMERICA ex rel.

JAMES KIRCHNER

DS.

W. G. JOHNSTONE, Jr., PRESIDENT JUDGE, COURT

OF COMMON PLEAS OF LANCASTER COUNTY,

PENNSYLVANIA, et al.

Civit ACTION

No. 77-3572

KENNETH SHALOM MILLROOD

vs.

SUPERINTENDENT LOWELL D. HEWITT and

THE ATTORNEY GENERAL OF THE

STATE OF PENNSYLVANIA

ORDER

(Filed June 23, 1978)

AND NOW, this 22nd day of June, 1978, upon consid-

eration of petitioners’ motions for writs of habeas corpus,

for the reasons set forth in a memorandum dated June

22nd, 1978, it is hereby ORDERED that said motions are

DENIED.

/s/ Raymond J. Broderick

RAYMOND J. BRODERICK, J.

13a

APPENDIX C

. UNITED STATES COURT OF APPEALS

For THE THIRD CIRCUIT

No. 78-2119

KENNETH SHALOM MILLROOD,

Appellant,

vs.

SUPT. LOWELL D. HEWITT and THE ATTORNEY

GENERAL OF THE STATE OF PENNSYLVANIA

|

SUR PETITION FOR REHEARING

DOCKET NO. 78-2119

Present: SEITZ, Chief Judge, and VAN DUSEN, ALDI-

SERT, ADAMS, GIBBONS, ROSENN, HUNTER,

WEIS, GARTH and HIGGINBOTHAM, Circuit

Judges.

The petition for rehearing filed by Appellant in the above

entitled case having been submitted to the judges who par-

ticipated in the decision of this court and to all other avail-

able circuit judges of the circuit in regular active service,

and no judge who concurred in the decision having asked

for rehearing, and a majority of the circuit judges of the

circuit in regular active service not having voted for re-

hearing by the court in banc, the petition for rehearing is

denied.

By the Court,

/s/ Aldisert

Judge

Dated: August 22, 1979

l4a

UNITED STATES COURT OF APPEALS

For THE THIRD CircuIT

No. 78-2123

UNITED STATES OF AMERICA ex rel:

JAMES KIRCHNER,

Appellant,

vs.

W. G. JOHNSTONE, Jr., PRESIDENT JUDGE, COURT

OF COMMON PLEAS OF LANCASTER COUNTY,

PENNSYLVANIA, D. RICHARD ECKMAN, DISTRICT

ATTORNEY OF LANCASTER COUNTY,

PENNSYLVANIA

SUR PETITION FOR REHEARING

DOCKET NO. 78-2123

Present: SEITZ, Chief Judge, and VAN DUSEN, ALDI-

SERT, ADAMS, GIBBONS, ROSENN, HUNTER,

WEIS, GARTH, and HIGGINBOTHAM, Circuit

Judges.

The petition for rehearing filed by Appellant in the above

entitled case having been submitted to the judges who par-

ticipated in the decision of this court and to all other avail-

able circuit judges of the circuit in regular active service,

and no judge who concurred in the decision having asked

for rehearing,-and a majority of the circuit judges of the

circuit in regular active service not having voted for re-

hearing by the court in banc, the petition for rehearing is

denied.

By the Court,

/s/ Aldisert

Judge

Dated: August 22, 1979

15a

APPENDIX D

IN THE

COURT OF COMMON PLEAS OF

LANCASTER COUNTY, PENNSYLVANIA

Criminal Actions Nos. 931 and ‘ya2

of 1973

COMMONWEALTH OF PENNSYLVANIA

vS.

KENNETH SHALOM MILLROOD

Jounstong, P. J.

This defendant, and an accomplice, were both charged

with possession of marijuana with intent to deliver and

conspiracy, and both were found guilty of both charges by

a jury. Motions in arrest of judgment and for a new trial

were timely filed on behalf of the defendant and these

motions are before the court en banc on briefs filed, after

argument.

Complaint is made that the court erred in refusing to

suppress five large plastic bags of marijuana as evidence

because certain provisions of section 780 of the Controlled

Substance Act were not complied with. This section of the

Act deals only with forfeiture of seized property and does

not affect in any way: the use or-preservation of evidence

to be used at trial. It is admitted that marijuana was

seized pursuant to a Jawful arrest and whether the evi-

dence was “sealed” or whether process was issued against

the evidence affects only the forfeiture of the marijuana

and not its use as evidence against the persons charged

with a violation of the Act.

2

16a

Appendix D 17a

The defendant next complains that he was indicted for

an offense not alleged in the complaint and that no pre-

liminary hearing was held on the offense charged in the

indictment. In our view, it is unthinkable that the de-

fendant or his counsel were not fully aware from the time

the complaint was filed that he was being charged with

the possession of marijuana with the intent to deliver the

contraband. All the words were not used in the complaint

but there is no room for doubt what the charges were

against the defendant. We see no substantive defect in the

failure of the complaint to state that the defendant pos-

sessed marijuana. He knew he had it in his possession and

that the State Police seized a large quantity or marijuana

from him, The defendant was fully informed at the prelim-

inary hearing of what the charges were against him. This

appears to us to be a super technicality which possesses no

merit.

The complaint that the defendant was denied the right

to call a particular witness is not founded in fact. The

witness, Blunt, referred to by the defendant is a State

Trooper who was not present at the hearing and who had

not been subpoenaed by the defendant. Pa. R. Crim. P.

141(c)(3) does give the defendant the right to call wit-

nesses at a preliminary hearing but if a witness is not at the

hearing and has not been subpoenaed by the defendant,

we know of no requirement on the part of the Common-

wealth to produce witnesses for the defendant's benefit.

The defendant and his counsel knew that the Common-

wealth did not intend to call Blunt to make out a prima

facie case and if they wanted to call him as a witness, then

the responsibility was theirs to see that he was at the hear-

ing and available as a witness.

The District Attorney of Lancaster County, through the

County Detective, has for years obtained a very brief thumb

nail sketch of prospective jurors caled for jury duty during

criminal trial weeks. Defense counsel when they saw the

18a Appendix D .

District Attorney refer to a list demanded to know what

the list was and to examine the list themselves. The de-

fendant’s motion was denied and in our view Common-

wealth v. Foster, 219 Pa. Superior Cy 127, supports the

Court's ruling. Never having seen the District Attorney's

investigation we do not know precisely what it contains.

Through the years we have learned, however, that a check

is made to determine if any of the prospective jurors have

a prior criminal record. We are satisfied that if the de-

fendant had the benefit of the investigation, he would

have nothing more than a few questions on voir dire would

produce.

The complaint of the defendant that Cdiimonwealth

did not present an unbroken chain of custody of the mari-

juana seized is just not based on fact. The evidence was

in the custody of the State Police at all times and there

was ample testimony to support that statement.

Finally, complaint is made that the Commonwealth did

not prove that the defendant did not have a license or was

not registered as a practitioner by the Board. There are,

of course, no licenses to possess or distribute marijuana

issued by the Board or anyone else. If there were, it would

be a defense which the defendant would be required to

prove. What the defendant suggests is not an element of

the offense charged against the defendant and there is no

burden on the Commonwealth to prove a lack of registra-

tion.

The defendant may not have had a perfect trial but he

had a fair one, and that is all to which he is entitled.

AND NOW, July 30, 1974, the defendant's motions in

arrest of judgment and for a new trial are denied and he

is directed to appear for sentence at the call of the District

Attorney.

BY THE COURT:

/s/

W. G. JOHNSTONE, Jr.