Dissenting Opinion by
Hoffman, J.:Appellants contend that the lower court erred in submitting their case to the jury on a charge of selling narcotics, where there was no direct evidence of sale.
On August 19, 1971, plainclothes detectives Martine, Ciganek, and Joiner, armed with a search warrant, set up surveillance of the residence of Izear Hill at 250 Sebring Avenue in Pittsburgh. After waiting approximately a half hour, the detectives observed the appellants leave the house and approach the rear of a 1969 Oldsmobile parked in front of the house, which belonged to appellant *577Izear Hill. The detectives then left their car, identified themselves, and informed the appellant that they had a search warrant. Detective Martine noticed that Izear Hill had a brown paper bag in his hand, and was trying to stuff the bag underneath articles which he had in the trunk. Detectives Martine and Joiner then grabbed Izear Hill and got the bag out of his hand. While they were doing so, a brown bottle fell to the street. The bottle was found to contain quinine, which is often used as a cutting agent for narcotics. The paper bag also contained 45 half-spoon size glassine bags, which were later analyzed as heroin, and 11 half-spoon bags wrapped in glassine bags, which were later found to contain cocaine. A search of Izear Hill yielded $289.00 in currency.
While Detectives Joiner and Ciganek were struggling with Fred Hill, a package fell to the street. The contents of the package were analyzed as 15 half-spoons of heroin wrapped in glassine bags. In addition, $432.00 in currency was taken from the person of Fred Hill. A search of the residence at 250 Sebring Avenue yielded seven measuring spoons containing a white powder and two brown boxes containing a large number of glassine bags. The search of the car yielded no contraband.
The appellants were indicted on December 17,1971, on counts of possession of, and selling and dealing in heroin and cocaine. On June 13, 1972, a jury found them guilty on both counts. Post-trial motions were denied. Appellants were each sentenced to a term of one to five years of imprisonment, without reference to count.
The appellants’ primary contention is that the lower court erred in submitting the charge of selling or dealing to the jury where there was no evidence connecting them with a specific sale or transaction. The Commonwealth argues that such proof is unnecessary, on the theory that the statute forbids “trafficking” in narcotics as well as sales, and that such trafficking may be inferred from the possession of sufficient quantities of narcotics. The Com*578monwealth cites no appellate case which interprets the statute in this manner.
The Commonwealth relies on the language of The Drug, Device and Cosmetic Act,1 §4(q)., former 35 P.S. §780-4 (q), which prohibited “[t]he possession, control, dealing in, dispensing, selling, delivery, distribution, pre-cription, trafficking in, or giving of, any dangerous or narcotic drug.” (Emphasis supplied). This language was paralleled in the second count of the indictment, apparently a standard form, which charged that the appellants did “deal in, dispense, sell, deliver, distribute, prescribe, traffic in, and give away” heroin and cocaine. (Emphasis supplied). This broad language of §4(q) of the Act must, however, be read in light of §20 of the Act, 35 P.S. §780-20, which prescribes penalties for various offenses under the Act. Under §20 (c), “[a]ny person who possesses any narcotic drugs in violation of the provisions of this act” i's guilty of a felony, and subject to a five-year prison term for the first offense. (Emphasis supplied).. Under §20 (d), “[a]ny person who sells, dispenses or gives away any narcotic drugs in violation of the provisions of this act” is guilty of a felony, and subject to a term of up to twenty years’ imprisonment for a first offense. (Emphasis supplied). Any other violation of the Act is classified as a misdemeanor by §20 (a). It appears, therefore, that if this count is read as charging only one offense, as required by Rule 219(b), Pa. R.Crim.P., the word “trafficking” taken from §4(q) must be read as further defining the conduct proscribed by the words “sells, dispenses, or gives away” in §20 (d). Indeed, the lower court specifically charged the jury as to the requirements of §20 (d). Thus, the word “trafficking” found in §4(q) does not eliminate the requirement of proving selling, dispensing, or giving away as required by §20 (d), just as the word “possession” found *579in §4 (a) does not eliminate the requirement of proving a sale in order to invoke the penalty of §20(d).
It is true that possession of a large quantity of drugs, at least under certain circumstances, is sufficient evidence to establish intent to sell under the new Controlled Substances Act,2 35 P.S. §780-113 (a) (30). See Commonwealth v. Santiago, 462 Pa. 216, 340 A.2d 440 (1975). Nevertheless, proof of intent to sell is not proof of actual sale or dealing.
Although the evidence pointing towards an intent to sell would not be relevant to a charge of actual sale, it would be relevant in determining whether the appellants must be resentenced on the possession charge, under the new Controlled Substances Act. Section 39(a) of the Act provides that “[i]n any case not yet final if the offense is similar to one set out in this act, the penalties under this act apply if they are less than those under prior law.” A case is not final until the availability of appeal is exhausted and the time for petition for certio-rari has elasped. Commonwealth v. Simpson, 222 Pa. Superior Ct. 296, 294 A.2d 805 (1972). Therefore, the instant case is not yet final, and was not final as of the effective date of the Controlled Substances Act.3 It is therefore necessary to determine whether the offense for which the appellants were convicted was similar to simple possession under the Controlled Substances Act4 *580or to possession with intent to deliver.5 Our Supreme Court has recently held that evidence of volume and value of the drugs possessed is relevant to determine whether the offense for which an appellant was convicted was similar to possession with intent to deliver. Commonwealth v. Santiago, supra.
As it appears that the appellants were improperly convicted on the second count, alleging selling or dealing, where no sale or deal was proved, I would grant an arrest of judgment as to this second count.6 This would necessitate a remand for resentencing on the remaining count. See Commonwealth v. Lockhart, 223 Pa. Superior Ct. 60, 296 A.2d 883 (1972). Resentencing may also be necessary under Commonwealth v. Santiago, supra, if the lower court determines that the offense which the appellants committed is similar to simple possession under the Controlled Substances Act.
I would arrest the judgment against appellants on the second count of the indictment, and remand for resen-tencing consistent with Commonwealth v. Lockhart, supra, and Commonwealth v. Santiago, supra.
Cercone, J., joins in this dissenting opinion.
. Act of September 26, 1961, P.L. 1664.
. Act of April 14, 1972, P.L. 233, No. 64, §1 et seq.
. We noted in Commonwealth v. Portalatin, 223 Pa. Superior Ct. 33, 36, n.6, 297 A.2d 144, 146, n.6 (1972), that “[s]ome confusion exists as to the exact date on which certain sections of the new act, including most sections pertaining to offenses and penalties, became effective.” The Act was amended shortly after its passage to indicate that the sections dealing with sentencing and resentenc-ing, 35 P.S. §§780-113, -115, and -139, took effect immediately. Act of June 27, 1972, P.L. 499, No. 158, §1, 35 P.S. §780-144. The Act in its entirety took effect on June 14, 1972.
. Section 13(a) (16), 35 P.S. §780-113(a) (16), which carries a maximum sentence of one year for a first offense. §13 (c), 35 P.S. §780-113(c).
. Section 13 (a) (30), 35 P.S. §780-113 (a) (30), which carries a maximum sentence of fifteen years for a first offense, in the case of heroin. §13 (f), 35 P.S. §780-113 (f).
. Although the only post-trial motions appearing in the record are motions for a new trial, it is clear from the lower court’s opinion that the question of the sufficiency of the evidence on each count was presented to and decided by the court. Insufficiency of the evidence is a ground for an arrest of judgment, rather than for a new trial. See Commonwealth v. Dale, 232 Pa. Superior Ct. 213, 335 A.2d 454 (1975).