(dissenting).
Appellant’s sole contention is that the Commonwealth’s evidence was insufficient to prove that he possessed sixteen “half-spoons” 1 of heroin with intent to deliver.
The facts, with minor exceptions, are undisputed: At 9:20 p. m., November 22, 1974, Ralph McDaniel, a plainclothes police officer employed by the Pittsburgh Police Department, received a tip from a confidential informant that appellant was carrying “a bundle of stuff wrapped in silver foil” and was going down the street to “meet some dudes.” McDaniel and Detective Norman Stewart picked up the informant and drove to Centre Avenue. The informant pointed out the appellant, who was standing near a white Buick parked just off Centre Avenue. After dropping off the informant, the police returned to the parked car. As the police approached, appellant got into the rear of the vehicle and was driven away. The police followed the car for several blocks before they stopped it. As they approached, McDaniel observed appellant place something beneath the rear seat. McDaniel’s search netted a brown bag containing sixteen “half-spoons” of heroin. A subsequent search at police headquarters uncovered two measuring spoons in the glove compartment and a small scale in the trunk of the Buick. The car was registered to the driver, one of appellant’s two co-defendants.
*14On April 17, 1975, appellant’s motion to suppress the physical evidence was denied; after a waiver of jury trial, the same court which heard the suppression motion found appellant guilty of possession of a controlled substance2 and possession with intent to deliver.3 On June 25, 1975, appellant was sentenced to a term of imprisonment of 111/2 to 23 months on the charge of possession with intent to deliver; sentence was suspended on the possession charge.
The only issue on appeal is whether the Commonwealth’s evidence was sufficient to prove the requisite intent under 35 P.S. § 780-113 (a) (30). The appellant admits that he was properly found guilty of simple possession under § 780-113(a)(16).
There is no question that the Commonwealth must prove every essential element of a criminal offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975). Further, the language of § 780-113(a) (30) makes clear that the Commonwealth must prove that the possessor intended to deliver the controlled substance: “(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited: . . . (30) . . . the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act . . . .” (Emphasis added). I recognize that when an appellate court reviews a claim of sufficiency, it must accept as true all the evidence, with all reasonable inferences therefrom, upon which the factfinder could properly have based its verdict. Commonwealth v. Clark, 454 Pa. 329, 311 A.2d *15910 (1973). At the same time, however, such inferences cannot be based on mere suspicion or surmise. Commonwealth v. Simpson, 436 Pa. 459, 260 A.2d 751 (1970); Commonwealth v, Clinton, 391 Pa. 212, 137 A.2d 463 (1958). Finally, if proof of an essential element is based on circumstantial evidence, “the evidence must be such ‘as reasonably and naturally to justify an inference of the guilt of the accused . . . and of such volume and quality as to overcome the presumption of innocence . .’ ” Commonwealth v. Townsend, 428 Pa. 281, 286, 237 A.2d 192, 195 (1968).
In the instant case, we start with the fact that appellant possessed only sixteen “half-spoons” of heroin. The Commonwealth’s witness, Officer McDaniel, testified that a normal user of heroin would need from one to three “half-spoons” a day, but that a heavy user would consume much more than that. The Commonwealth introduced the laboratory report containing the results of tests conducted on the heroin found beneath the back seat of the Buick:
“1. Four glasseen [sic] envelopes which held a total of 1.4330 grams of tan speckled powder. The powder in each envelope contained heroin.
“2. Twelve aluminum foil packets which held a total of 3,4968 grams of tan speckled powder. The powder in each packet contained heroin.”
The Commonwealth introduced no testimony concerning the purity of the heroin. If the heroin were relatively pure, it would tend, at least, to indicate that the drugs had just entered the drug traffic, and because users seldom receive unadulterated heroin, the likelihood that appellant was a trafficker would be thereby increased.4 *16The only other proof of the intent to deliver was the police officer’s belief that a person found with sixteen “half-spoons” would not be using them for personal use. Further, Officer McDaniel testified that he did not know whether the appellant was an addict or a user of heroin. That is, the Commonwealth did not advance the theory that appellant was a non-user, thereby increasing the probability that he possessed the drugs because he was engaged in drug traffic.
I have found no case in Pennsylvania which announces a fixed line to distinguish between mere possession and possession with intent to deliver. In Commonwealth v. Hill, 236 Pa.Super. 572, 346 A.2d 314 (1975), this Court sustained a conviction for trafficking in drugs based on possession of fifteen “half-spoons”. The facts of Hill are readily distinguishable and point up the paucity of the evidence in the instant case: “Turning to the facts of our case it is also clear that sufficient evidence was produced at trial so as to enable the jury to convict on the charge of ‘trafficking.’ Both defendants were found with substantial quantities of heroin on their persons. The heroin was packaged in glassine bags and appellants were in the process of transferring the neatly packaged substances from the residence into the vehicle at the time of their arrest. The residence itself was found to contain a large quantity of glassine bags which are commonly used to package and sell narcotics. Several measuring spoons were also found on the premises. A quantity of quinine was found on the person of Izear Hill. Both defendants had large amounts of cash on their person.” 236 Pa.Super. at 573-576, 346 A.2d at 315-16.5
*17Although the police found two measuring spoons and a scale in the Buick in the instant case, neither was within appellant’s possession or control. No evidence links appellant with those items, and they were properly introduced at trial only against appellant’s co-defendants. See, Commonwealth v. Fortune, 456 Pa. 365, 318 A.2d 327 (1974); Commonwealth v. Tirpak, 441 Pa. 534, 272 A.2d 476 (1971). It is equally plausible that appellant had purchased his narcotics from his co-defendants as it is that all three men were involved together in illicit drug traffic.
Thus, appellant stands convicted of possession with intent to deliver on the police officer’s speculation concerning what the normal drug addict’s daily usage is and on the fact that he possessed sixteen “half-spoons” of heroin. Even based on the Commonwealth’s evidence, a heavy heroin user might consume sixteen “half-spoons” in a matter of two or three days. Without further proof of the degree of appellant’s use, possession of sixteen bags simply does not prove beyond a reasonable doubt that appellant intended to deliver the heroin. It is at least as likely that he possessed the drugs for his personal use. I would hold that proof of possession of a quantity of heroin which could be consumed by a single person in two to three days, without more, is insufficient to prove an intent to deliver.
Therefore, I would reverse appellant’s conviction under § 780-113(a) (30) and remand for resentence on the conviction for possession under § 780-113(a) (16).
SPAETH, J., joins in this dissenting opinion.. See Commonwealth v. Hill, 236 Pa.Super. 572, 346 A.2d 314, 315 (1975): “. .a ‘half-spoon’ of heroin consists of about 5 grams of the substance and sells for $25.00 on the street.”
. Act of April 14, 1972, P.L. 233, No. 64, § 13, imd. effective; as amended 1972, Oct. 26, P.L. 1048, No. 263, § 1, imd. effective; 1974, Dec. 30, P.L. 1041, No. 340, § 1, imd. effective; 35 P.S. § 780-113(a)(16).
. Act of April 14, 1972, supra; 35 P.S. § 780-113(a)(30).
. The Commonwealth’s witness testified that purity is extremely relevant in deciding how many “half-spoons” a user requires:
“Q. [by defense counsel]: ... a heavy user with that kind of habit, a heavy habit, between a hundred and a hundred and a half a day would be using four to six packets a day, half spoons?
*16“A. There again, . . . , I can’t really answer that question because a lot comes into play here, what the percentage of the stuff is; and, well, if it would be a low percentage, I could possibly agree with you; if it’s a high percentage, I cannot agree with you.”
. Despite the quantity of evidence in Hill, the conviction was affirmed only by a divided court.