Commonwealth v. Kittrell
19 A.3d 532
| Pa. Super. Ct. | 2011Background
- Undercover sergeant purchased crack from a man identified as Dee using a numbered cell; first meeting Dec 9, 2008 at Summit Inn yielded 5 bags (0.36 g total) of crack.
- Second meeting Dec 15, 2008 yielded 4 bags (0.35 g total); Sgt. Rutherford obtained two additional bags.
- Dec 18, 2008 operation culminated in a buy-bust arrest at Summit Inn; Dee drove a blue/gray Chrysler 300; passengers Becker and McNeal arrested; drugs, cash, and phones recovered.
- Appellant, Andre Kittrell, faced three PWID counts, three possession counts, and two conspiracy counts; information were refiled after initial filing.
- Appellant was sentenced on Dec 18, 2009 to 5–10 years (mandatory minimum on one PWID count); employer-imposed; appellate issues concern legality of sentence and sentencing entrapment defense.
- Appellant raised a challenge to the legality of the sentence under Vasquez, and a discretionary-sentencing challenge based on sentencing entrapment; the trial court denied motions and affirmed the sentence on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Vasquez governs the sentence as illegal, given purported implicit overruling | Kittrell argues Vasquez overruled by Jarowecki/Haag | Commonwealth contends Vasquez remains governing | Vasquez not overruled; sentence legal |
| Whether the sentencing entrapment claim warrants adjustment | Kittrell asserts aggravating entrapment due to government conduct | Commonwealth argues no outrageous conduct or extraordinary misconduct | No sentencing entrapment; no change to sentence |
Key Cases Cited
- Commonwealth v. Vasquez, 753 A.2d 807 (Pa. 2000) (recognizes enhancement under § 7508 when defendant has prior drug convictions within same proceeding)
- Commonwealth v. Jarowecki, 985 A.2d 955 (Pa. 2009) (distinguishes Vasquez; limits use of recidivist concepts to § 7508 vs. § 6312)
- Commonwealth v. Haag, 981 A.2d 902 (Pa. 2009) (recidivist considerations under driving/vehicle code context; predated offense requirement)
- Commonwealth v. Rush, 959 A.2d 945 (Pa. Super. 2008) (legality of sentence review for § 7508; waivable issue)
- Commonwealth v. Williams, 652 A.2d 283 (Pa. 1994) (recidivist sentencing under § 7508 considerations)
- Commonwealth v. McAfee, 849 A.2d 270 (Pa. Super. 2004) (discretionary-sentencing claim preservation; 2119(f) standards)
- Commonwealth v. Goggins, 748 A.2d 721 (Pa. Super. 2000) (standard for substantial question in discretionary-sentencing claims)
- Commonwealth v. Paul, 925 A.2d 825 (Pa. Super. 2007) (sentencing entrapment analysis framework; requires outrageous conduct or predisposition evidence)