In the late seventies early eighties, we started to hear the state was considering a new law pertaining to selling drug paraphernalia.  My mother was already a nervous wreck working in the police department while her sons owned a Head Shop. She had been working there long enough to have made friends with the officers and detectives.  Some of them would let her know someone was watching her son’s business and to let them know to be careful.  She loved and trusted us but she had no idea if we even tried drugs let alone if we were selling them so she had every right to be nervous. It had been several years since Jimmy’s bust in the Lansdowne house but it still made us look suspect.  Articles in the papers were appearing about this new law being written and argued in Harrisburg. A lawyer who was working in State College PA was mentioned in the articles a lot since he had been following the goings on in Harrisburg and was there in the middle of the writing of this new law.  His name is Joseph M. Devecka, and I kept his info in case one day I would need his help.

As this law was being put together I spoke with other head shop owners and it was agreed that if we advertised our items as tobacco products and accessories we would not be breaking any laws and should be able to continue to sell rolling papers, pipes and even water pipes and bongs.  I applied for a tobacco license and started to order several brands of tobacco which could be rolled into homemade cigarette’s or smoked in any of the pipes we were selling.  We broke our smoking inventory down to two glass display cases with clear signs advertising tobacco products and signs showing no one under 18 could purchase anything in either case. It was a pain in the neck working under these conditions since so many of the customers wanted to be cool and let you know they were carrying and were buying the pipes or papers for drugs, at which point we’d have to stop the sale and explain to them we can’t sell these items to them knowing they are going to use them for drug use.  Arguments would break out and name calling could be heard but we had to walk that line to protect ourselves. With my mother’s warnings about being watched I feared every one of those types of customers were narks testing us to see if they could make a bust.

I could never take a real vacation or time off without something going wrong, someone not showing up for work, Buzzy and Yoko finding fault with one of my employees and firing them while I was away it was always unsettling for me to go away not knowing what problem I would be returning to.  July 28^th 1983, exactly three days after the new law became law, I was down the shore with Claudia and my daughters for a vacation when the phone rang.  It was Billy Stewart telling me the detectives were at the store busting us for drug paraphernalia.  There were two detectives in the store and were confiscating our inventory out of the two cases. I asked to speak to one of the detectives and I offered to drive back so I could be charged since I did not want Billy or Rodney (salesmen) to be charged of any wrong doing.  The detective led me to believe it would just be me and I would not need to drive back I would be mailed papers of all charges at a later date. Well it did not turn out that way, I was charged since I owned the store, Billy was charged since he was the manager in charge and Rodney was charged since he sold one of the detectives a pipe. The detectives had a search warrant so they searched the store including our stock room.  I was told later that they were very disappointed not to have found any drugs on the premises. I was furious they had to charge Billy and Rodney and I felt they only pulled them into the suit with hopes that one of them would spill the beans which there were no beans to spill.  

I called Joseph M. Devecka the lawyer from State Collage and hired him to represent the three of us.  I knew it was rough for Billy and Rodney and they were very understanding and considerably cool about the whole thing. They knew the store would cover their expenses and pay for any costs involved. 

The case dragged on for two years, it was not decided until August of 1985 at which time Rodney was no longer working with us. Joseph Devecka said the court could not push the case any further but the township did not want us to get off free, so to avoid letting it on go into more appeals back and forth to end it we agreed to sign an agreement to do 12 months’ probation and that all charges would not only be dropped by erased from the records. So each month we’d have to go to a probation officer’s office and let them know we are good law abiding citizens with jobs and not involved in any trouble making. Since then Rodney shared with me when he applied for a job at the post office it came up on his record and in 2019 Billy shared with me it was still on his record. I checked the internet and found the case online so as far as the deal being dropped and erase they did not keep their side of the bargain. The case cost us almost $2,000 a head and any traveling charges and hotel charges for Joseph to come and appear at the Media Court House.  I do believe he did the best anyone could have done for us, it’s a small town and without someone representing us that knew the in’s and out of that new law they could have made our lives miserable. Our case also help set a precedent for other head shops and what they were doing, there were no other arrests or busts after our case. 

Time is a funny animal, as I write this in 2020 the laws and views of marijuana have changed almost 100 per cent.  A lot of men and women have served time in prison for having used or carried small amounts of marijuana. People are now smoking, eating and baking with marijuana for all kinds of health issues, sort of a miracle drug which I always knew (lol).  .

Copied from JUSTIA US Law website

Com. v. Lacey          

344 Pa. Superior Ct. 576 (1985)

496 A.2d 1256

COMMONWEALTH of Pennsylvania v. Rodney L. LACEY, Appellee. COMMONWEALTH of Pennsylvania v. Michael SMITH, Appellee. COMMONWEALTH of Pennsylvania v. William STEWART, Appellee.

Supreme Court of Pennsylvania.

Argued April 2, 1985.

Decided August 9, 1985.

*578 Sandra L. Elias, Deputy District Attorney, Media, for Commonwealth, appellant.

Joseph M. Devecka, State College, for appellees.

Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.

OLSZEWSKI, Judge:

This matter comes before us on appeal from the dismissal of certain criminal charges against appellees Rodney L. Lacey, Michael Smith and William Stewart. The charges, possession with intent to use drug paraphernalia and possession *579 with intent to distribute drug paraphernalia, followed a police raid on a suspected “head” shop. Finding that the Commonwealth had failed to establish a prima facie case against appellees, the lower court dismissed the charges. We have reviewed the record and the briefs in this matter. For the reasons that follow, we affirm in part, reverse in part the lower court’s orders.

I

Testimony at the preliminary hearing established that on July 28, 1983, Detective Gregory A. Kennard entered Balcony Inc., a store located at 6901 Market Street, Upper Darby, and purchased a large “bong” type pipe and a dagger which had metal knuckles built into its handle. While in the store, Kennard observed offered for sale numerous other items, some of which he considered drug paraphernalia and others, such as posters, albums and concert type shirts, which he deemed unrelated to drugs. August 3, 1983, Kennard returned to Balcony Inc. Ascertaining that the store’s merchandise remained essentially the same, Kennard prepared an affidavit for a search warrant. Later that day, the warrant issued, Kennard with detectives searched the Balcony Inc. store and seized certain merchandise then on display, as well as other merchandise found in the store’s back room. Complaints were lodged against appellees Michael Smith, William Stewart and Rodney L. Lacey[1] for violations of the Controlled Substances, Drug Devices and Cosmetic Act, to wit, use of or possession with intent to use drug paraphernalia[2] and delivery of or possession with intent to deliver drug paraphernalia.[3] Additionally, appellees were each charged with a violation of the Crimes Code, the possession of prohibited offensive weapons.[4]

*580 Following a preliminary hearing, appellees were held for court on all charges. Counsel filed a petition for habeas corpus was filed on behalf of each appellee. The Honorable R. Barclay Surrick determined that the evidence presented by the Commonwealth failed to establish a prima facie case on the drug paraphernalia charges.[5]

In this appeal, Commonwealth argues that the testimony presented against appellees did establish a prima facie case as to each of the crimes charged. A question arises as to exactly what elements of proof constitute a prima facie case under 35 P.S. Section 780-113(a)(33).[6] The statute prohibits:

The delivery of, possession with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it would be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance in violation of this act.

Commonwealth contends that the items seized are, by virtue of their display in a “head” shop, necessarily drug paraphernalia. “Possession with intent to deliver,” under the Commonwealth’s theory, follows from display of drug paraphernalia in a “head” shop. The lower court, applying a more stringent scienter requirement, rejected Commonwealth’s first premise. “We fail to see how this evidence establishes that the defendants held for sale the multi-purpose items seized by authorities with the specific intent that they would be used in conjunction with illegal drugs.” Lower court opinion at 18. Finding that Commonwealth failed to establish that the items seized were in fact drug *581 paraphernalia, the lower court dismissed the drug paraphernalia charges.[7]

II

At issue is the interpretation of Pennsylvania’s Drug Paraphernalia Act (the “Act”).[8] The Act, which is patterned on the Model Drug Paraphernalia Act, has been incorporated into Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic Act.[9] Section 780-102(b) provides a tri-partite definition of “drug paraphernalia.” First, it defines drug paraphernalia generally as “all equipment, products and materials of any kind which are used, intended for use or designed for use” with a controlled substance. Second, it lists twelve types of items as examples of drug paraphernalia. Finally, it offers thirteen factors to be considered when determining whether an item is drug paraphernalia:

In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, statements by an owner or by anyone in control of the object concerning its use, prior convictions, if any, of an owner, or of anyone in control of the object, under any State or Federal law relating to any controlled substance, the proximity of the object, in time and space, to a direct violation of this act, the proximity of the object to controlled substances, the existence of any residue of controlled substances on the object, direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons who he knows, or should reasonably know, intend to use the object to facilitate a violation of this act, the innocence of an owner or of anyone in control of the object, as to a direct violation of this act should not prevent a finding that the object is intended for use or *582 designed for use as drug paraphernalia, instructions, oral or written, provided with the object concerning its use, descriptive materials accompanying the object which explain or depict its use, national and local advertising concerning its use, the manner in which the object is displayed for sale, whether the owner, or anyone in control of the object is legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products, direct or circumstantial evidence of the ratio of sales of the object to the total sales of the business enterprise, the existence and scope of legitimate uses for the object in the community, and expert testimony concerning its use.

35 P.S. Section 780-102(b).

The Act includes a specific intent requirement to distinguish innocent transfers of multi-purpose items from illegal transfers of drug paraphernalia. See Pennsylvania Accessories Trade Association v. Thornburgh, 565 F. Supp. 1568, 1576 (M.D.Pa. 1983); see also Hoffman Estates v. Flipside, 455 U.S. 489, 495, 102 S. Ct. 1186, 1191, 71 L. Ed. 2d 362 (1982). For an item to be classified as drug paraphernalia, the prosecution must establish that the person charged with violating the Act had the specific intent that the item he possessed or delivered be used with controlled substances.

So ruling, we adopt the holding of the Federal District Court in Pennsylvania Accessories Trade Association v. Thornburgh, 565 F. Supp. 1568, 1576 (M.D.Pa. 1983). Although we are not bound by an inferior federal court’s interpretation of state law, see Moore v. Sims, 442 U.S. 415, 428, 99 S. Ct. 2371, 2379, 60 L. Ed. 2d 994 (1979), we are persuaded by the reasoning of Judge Herman’s thoughtful opinion. An item does not qualify as drug paraphernalia unless it is “used, intended for use or designed for use” with controlled substances. It is clear that the Act permits a person to be arrested, prosecuted and convicted only for that person’s own use, intent or design. This construction has been adopted by those federal circuit courts which have *583 considered the issue. See Pennsylvania Accessories Trade Association v. Thornburgh, 565 F. Supp. at 1576-77 and cases cited therein. Further, as Judge Herman correctly notes, this interpretation is impelled by Pennsylvania law. See Commonwealth v. Wilson, 449 Pa. 235, 238, 296 A.2d 719, 721 (1972) (liability for acts of another only with a showing of shared criminal intent); Commonwealth v. Teada, 235 Pa.Super. 438, 444, 344 A.2d 682, 684-85 (1975) (if inconsistent interpretations are both reasonable, benefit of doubt inures to defendant); 1 Pa.C.S. Section 1928(b)(1) (penal statutes strictly construed).

Precisely because a defendant is to receive the benefit of a doubt, we are not persuaded by the reasoning of the Commonwealth Court in Cochran v. Commonwealth, 69 Pa.Cmwlth. 74, 450 A.2d 756 (1982). In Cochran the Commonwealth Court, addressing an analysis of the Drug Paraphernalia Act, assumed that objects could be classed as drug paraphernalia solely on their physical characteristics. The problem with such an approach is that it fails to distinguish “the paper clip which holds the pages of this opinion from an identical clip which is used to hold a marijuana cigarette.” Pennsylvania Accessories Trade Association, Inc. v. Thornburgh, 565 F. Supp. at 1577 (citation omitted).

To summarize, an item can be qualified as “drug paraphernalia” only if it meets the statutory definition of Section 780-102(b) and the prosecution establishes that the accused used it, intended it for use or designed it for use with controlled substances.

III

Having ascertained the relevant law, we turn now to the purpose and procedure of the preliminary hearing and to the scope of our powers on review.

A creature of statute, the preliminary hearing is intended to protect the accused from unlawful detention. Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8 (1978). *584 To that end, the prosecution must establish at least a prima facie case that a crime has been committed and that the accused is the one who committed it. Commonwealth v. Mullen, 460 Pa. 336, 341, 333 A.2d 755 (1975). The Commonwealth’s burden at this stage falls short of proof beyond a reasonable doubt. Commonwealth v. Rick, 244 Pa.Super. 33, 366 A.2d 302 (1976). The proof need only be such that, if the evidence were presented at trial and accepted as true, the trial judge would be warranted in allowing the case to go to the jury. Commonwealth ex rel. Scolio v. Hess, 149 Pa.Super. 371, 374-375, 27 A.2d 705, 707 (1942).

Case law prescribes a mechanical standard of review:

Our function is to take the facts proven by the Commonwealth at the preliminary hearing and to determine whether the sum of those facts fits within the statutory definition of the types of conduct declared by the Pennsylvania legislature in the Crimes Code to be illegal conduct. If the proven facts fit the definition of the offenses with which the appellees are charged, then a prima facie case was made out as to such offense or offenses. If the facts do not fit the statutory definitions of the offenses charged against the appellees, then the appellees are entitled to be discharged.

Commonwealth v. Lynch, 270 Pa.Super. 554, 582, 411 A.2d 1224, 1239 (1980) (citations omitted).

In the instant case, Commonwealth sought to establish intent with circumstantial evidence. “The use of inferences is a process of reasoning by which a fact or proposition sought to be established is deduced as the logical consequence from the existence of other facts which have been established,” Commonwealth v. Wojdak, 502 Pa. 359, 368, 466 A.2d 991, 996 (1983) (citations omitted). The test for reviewing these inferences is well established:

Evidentiary inferences, like criminal presumptions, are constitutionally infirm unless the inferred fact is more likely than not to flow from the proved fact on which it is made to depend. When the inference allowed is tenuously *585 connected to the facts proved by the Commonwealth, due process is lacking.

Commonwealth v. McFarland, 452 Pa. 435, 439, 308 A.2d 592, 594 (1973) (citations omitted). The “more-likely-than-not” test is, of course, a minimum standard against which we measure the reasonableness of the inferences used to establish a prima facie case of criminality. Commonwealth v. Wojdak, 502 Pa. at 368, 466 A.2d at 996.

IV

In the case at bar, Commonwealth relied on the physical appearance of the items on display at Balcony Inc. and the experience of the officers as narcotic investigators to establish that the items were intended for use as drug paraphernalia. The lower court concluded that Commonwealth’s evidence failed to support an inference of specific intent. We disagree.

Section 780-102(b) contains a nonexhaustive list of factors to guide law enforcement authorities and the courts in determining whether an object is drug paraphernalia, that is, whether it is possessed, delivered or manufactured with the requisite intent. Pennsylvania Accessories Trade Association v. Thornburgh, 565 F. Supp. at 1578. Commonwealth, at the preliminary hearing, introduced various items purchased or seized from Balcony Inc. These items included a “bong” type pipe; a leather packet containing a mirror, straw, spoon type object, razor blade and clear vial, a second packet, “basically the same type of kit but used,” assorted pipes and a scale. Exhibits C-1, C-2, C-7, C-8, C-12 and C-13. Section 780-102(b) offers examples of drug paraphernalia; among them are “Bongs,” “Miniature cocaine spoons and cocaine pipes,” “metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens, permanent screens, hashish heads or punctured metal bowls” and “scales or balances used, intended for use or designed for use in weighing or measuring controlled substances.” Chief among the factors to be considered by the court is expert testimony concerning the object’s use. *586 Sergeant Greg Seltzer testified as an expert witness as to the illegal use which could be made of the items seized and purchased from Balcony Inc.

On the basis of the evidence presented at the preliminary hearing, we are satisfied that the Commonwealth did establish a prima facie case with respect to the alleged violations of Section 780-113(a)(33). Section 780-113(a)(33) prohibits the possession with intent to deliver drug paraphernalia. To establish a prima facie case under Section 780-113(a)(33), the Commonwealth must show first that the seized items constitute “drug paraphernalia.” We are satisfied that the items fall within the statutory description. See Section 780-102. The further requirement of specific intent, that each of the accused intended each of the various items to be used with controlled substances, may be inferred from the facts of this case, the nature of the items, and the officers’ experience in narcotics investigations. Possession with intent to deliver the paraphernalia follows from the totality of the circumstances in this case.

We note the testimony on record tending to militate against an inference of specific intent. The “bong” type pipe bore a sticker which indicated studies done by the United States Department of Health, Education and Welfare show that tobacco smoke filtered through water pipes contain 50% less carcinogenicity than smoke from standard pipes, cigarettes and cigars. Signs throughout the store cautioned: “You must be 18 to buy tobacco merchandise,” “You must be 18 to purchase pipes, papers, or any tobacco related merchandise, please have I.D. ready,” “No item we sell is intended for use with any illegal substances, therefore, if you imply the item you want is to be used illegally, we must refuse to sell you that item.” The seized kits were displayed as “Snuff Kits.” In turn, each officer testified that he had no knowledge that any of the defendants had prior convictions relating to controlled substances; that he had discovered no residue of controlled substances in the objects seized at Balcony Inc.; that he had no evidence or names of persons to whom defendants had actually delivered *587 items from Balcony Inc.; that he had no knowledge that any of the defendants had training concerning objects used for ingesting controlled substances; that he had no reason to believe that any defendant had participated in the design or construction of any object seized at the store; and that he had no reason to believe any of the defendants had used controlled substances. Sergeant Seltzer testified further that none of the defendants had given oral instructions concerning the use of any of the items seized; and that he had concluded the items were drug paraphernalia simply from the physical appearance of the items themselves. It was not disputed that Balcony Inc. is properly licensed to sell tobacco products. Neither officer attempted to determine the ratio of sales of the items seized as drug paraphernalia to total gross sales of Balcony Inc. See 35 P.S. Section 780-102(b).

We recognize the import of this testimony and we maintain that the inference of specific intent is reasonable at this stage of the proceedings. It remains for the Commonwealth to put its proof to test at trial. There, the fact-finder may well conclude that the circumstances fail to establish beyond a reasonable doubt the requisite intent. Such speculation is beyond us now. At this stage of the proceedings, we simply conclude that the Commonwealth has established a prima facie case with respect to Section 780-113(a)(33).

The lower court did correctly dismiss the charges under Section 780-113(a)(32). The record is devoid of testimony that any of the defendants used or possessed with the intent to use drug paraphernalia.[10]

The orders are affirmed as to charges arising under 35 P.S. Section 780-113(a)(32) and reversed as to those arising under 35 P.S. Section 780-113(a)(33). The matter is remanded for trial on the latter charges. Jurisdiction is relinquished.

NOTES

[1] Smith is the owner of Balcony Inc., Stewart is its manager and Lacey is the employee who waited on Detective Kennard.

[2] 35 P.S. Section 780-113(a)(32).

[3] 35 P.S. Section 780-113(a)(33).

[4] 18 Pa.C.S. Section 908.

[5] The matter was submitted to Judge Surrick on briefs and the notes of testimony from the preliminary hearing.

[6] Commonwealth fails to develop an argument as to 35 P.S. Section 780-113(a)(32). “The Commonwealth’s brief presents argument as to (a)(33). Of course, the same evidence would support a charge of (a)(32).” Appellant’s Brief at 15, n. 3.

[7] The petitions were denied as to the charged violations of 18 Pa.C.S. Section 908.

[8] Act of December 4, 1980 P.L. 634 No. 186.

[9] Act of April 14, 1972 P.L. 233 No. 64, as amended, 35 P.S. Section 780-101, et seq.

[10] Commonwealth, by failing to develop an argument under Section 780-113(a)(32), may be deemed to have waived the issue. See Commonwealth v. Balch, 328 Pa.Super. 71, 476 A.2d 458 (1984); see also Pa.R.A.P., Rule 2119, 42 Pa.C.S.A.

Footnote: I was personally very happy the detectives did not go into the back window and pull up the corner of the carpet.