*1 348 this decision of
ZAPPALA, J., participate did not case. this decision of
PAPADAKOS, J., participate did not case. of this case. in the decision
CAPPY, J., not participate did Pennsylvania, Appellee, COMMONWEALTH CORPORAN, Appellant. Pedro Pennsylvania. Supreme Court of April 1992. Submitted 17, 1992. Decided June *2 Jones, Defender, Floyd P. Asst. Public appellant. for Fawcett, Christy Prosecutor, H. Deputy appellee. for NIX, C.J., LARSEN, FLAHERTY, Before and jj. McDERMOTT, ZAPPALA, CAPPY, PAPADAKOS OPINION OF THE COURT FLAHERTY, Justice.
In in the Court of Common of County, Pleas York the appellant, Corporan, Pedro was convicted of controlled substance with intent to deliver. Appellant was sentenced to three to six imprisonment, and a fine of fifteen thousand dollars imposed. was An appeal was taken to Court, the Superior whereupon the of judgment sentence was affirmed. 406 Pa.Super. present 830. The allowance, appeal, by ensued. affirm. We The three year minimum term imprisonment and fifteen thousand dollar fine imposed upon appellant prescribed was by the mandatory provision in 18 Pa.C.S. 7508(a)(3)(ii). The issue presented in this appeal is whether sentencing provision was properly applied.
Appellant was convicted being in possession of a mixture of powder terms, cocaine. By express mandatory sentencing provision is to applied when posses- sion of the controlled substance quantity has involved a minimum having substance a specified wit, weight, grams. There was no evidence in this case that the cocaine itself, as opposed to the mixture of powdered cocaine and total agents, requirement. met that The
cutting weight cocaine, that from was seized powder, containing grams. pure was 14.19 appellant is known. powder contained not mandatory sentencing pro contends seized applies only vision where requirement, meets the ten rather than where gram cutting agent together mixture of cocaine and agree. meets that We do not Such a contention requirement. statute. plainly contrary is express 7508(a) sentenced, provid When 18 Pa.C.S. * pertinent ed in part follows: 13(a)(14) (3) A person violating is convicted of section who Substance, Drug, of The Controlled Device controlled substance is coca leaves Cosmetic Act where or salt, of coca compound, derivative salt, compound, leaves or derivative or *3 of these chemically equivalent any which is or identical with any substances or mixture containing any of these sub- of coca stances decocainized coca leaves extracts except (extracts) ecgonine do contain leaves which not shall, conviction, mandatory be to a mini- upon sentenced as in this imprisonment mum term of and a fíne set forth subsection: the
(ii) upon the first conviction when the amount of at 100 substance involved is and less than least $15,000---- in prison and a fine of grams; three added). (Emphasis meaning
This a case the of the statute is not where for such that we would need to search question ambiguous, extensively or resort to legislative history rules * quoted was in all times portion of the statute is that which effect at The by legislature to The statute revised the relevant this case. 1990, mixture, clearly expresses weight and the the of the revision cocaine, opposed weight upon the is the factor sentencing provision depends. legislature re- application The of the tained, therefore, weight focus mixture as a clear of the opposed to of the as the factor. determinative
351 lan- intent. When legislative discern the construction given it must be unambiguous, statute is clear of a guage meaning. common plain with accordance effect 1324, 232-33, Larkin, 225, 518 Pa. v. 339-40, Bell, 516 Pa. 512 (1988); Commonwealth 1328 Act, 1 Pa.C.S. (1986); Statutory Construction A.2d of the 1921(b). § 105 (provisions § also Pa.C.S. See 18) (Title according to the are to be construed Crimes Code terms). of their import” “fair for has been a conviction
When there deliver, 18 Pa.C.S. with intent controlled substance 7508(a)(3)(h) minimum sentence year that a three requires $15,000 imposed “when and a fine of imprisonment ” grams.... is at least ten of the substance involved amount added). contends that the (Emphasis including the determined without should be “substance” i.e., that it is the cutting agent, weight of containing mixture cocaine rather than however, contention, determinative. Such cocaine that is statutory provision that the same plain definition ignores term “substance.” accords to the 7508(a)(3), stated that supra, expressly it is
In 18 Pa.C.S.
apply
minimum
shall
“where
mandatory
sentence
...
or is
substance is coca leaves
controlled
containing any
...
of these
leaves
or is
of coca
”
added).
could
(Emphasis
substances....
that,
purposes
expressing
not have been more clear
or mixture
reflects the
to be counted as a “substance.” This
cocaine is
*4
commonly possessed
that cocaine is
awareness
legislature’s
and adulterants
containing
in mixture
and circulated
a
same
agents. Within the
cutting
which serve as
(3)(ii),
reference to the
supra,
subparagraph
at
provision,
referring
taken as
the “substance” must be
weight substance,
any preparation
cocaine or
namely
pure
same
would be to accord
To conclude otherwise
or mixture thereof.
the same
different definitions within
“substance” two
the term
would be both unreasonable
a result which
statutory provision,
statute.
See 1
by any language
and
unsupported
1922(1)
§
be
to intend an
(legislature
presumed
Pa.C.S.
result).
absurd or unreasonable
essentially
subparagraph
contention is
Appellant’s
(3)(ii)
though
construed as
it used the
of the statute should be
“pure
describing
term
cocaine” rather than “substance”
legisla-
chosen
weighed.
language
by
material
to be
ture, however,
is
defined
controlling.
expressly
“Substance”
If
to include a
or “mixture.”
“preparation”
the statute
mix-
to include
preparations
had not intended
could
containing
weights
cocaine as substances whose
tures
it
have
mandatory sentencing provision,
would
trigger
than the
made reference to the
of the cocaine rather
triggering
imposi-
of the
as the
factor
“substance”
Perez,
sentence. See mandatory
tion of a
(weight
Thus, held Superior properly Court based language mandatory unambiguous clear a triggered by can be sentencing provision cutting mixture in cocaine has been combined with a found to be in agent. Inasmuch as mixture, he was sentenced properly of 14.19 of such provision question. under the affirmed. Order J.,
ZAPPALA, in the result. concurs CAPPY, J., dissenting opinion. files CAPPY, Justice, dissenting. majority I cannot with the respectfully dissent. issue, of the statute at 18 Pa.C.S. 7508(a)(3)(ii), unambiguous. majori- clear and I find the strained, legisla- as the
ty’s analysis quite particularly *5 has, litigation, of this amended since the commencement ture at issue.1 very problem to statute correct for his conviction of was sentenced appellant At the time deliver, substance with intent of controlled possession read as follows: mandatory imprisonment providing statute (a) provisions other of Notwithstanding any General rule.— contrary, following provi- any this or other act ... apply: sions shall 13(a)(14)
(3) violating A convicted of section person who is Substance, Drug, of Device or The Controlled Act is coca leaves Cosmetic where the controlled substance salt, coca preparation derivative or any compound, or is of salt, or compound, preparation leaves or is derivative any equivalent any or identical with chemically any these any these substances or is or substances decocainized coca leaves extracts except (extracts) do orecgo- coca leaves which not contain cocaine conviction, shall, a mandatory nine be sentenced to minimum term a fine as forth imprisonment set ... this subsection:
(ii) amount of sub- upon the first conviction when the at least and less than 100 stance involved is $15,000 ... prison and a fine of grams; three added) (emphasis
Contrary expressed majority opinion, view (3), above, include forth does not a mixture Subsection as set Rather, any of cocaine and other matter other than cocaine. term is used in this subsection it refers to “mixture” when substances,” containing any namely, “mixture these “coca leaves ... or any out the subsection itself: spelled salt, or of coca leaves or ... compound, derivative salt, compound, derivative which is chemi- ” identical with of these cally equivalent substances.... case,
In the the Commonwealth established that the instant powder was in white with a total 7508(a)(3)(h) was sentenced under 18 Pa.C.S. on 1. herein 19, 1990, statute was on December 1989. The amended December 7508(a)(3)(h). now at 18 Pa.C.S. and is codified weight of 18.77 grams containing cocaine and Manitol. Mani- tol is not a out in spelled substance as the above definition of Thus, “mixture.” with the conclusion of the *6 majority, that the reference to clearly “substance” as delineat- ed in the meant include “mixture” of a statute substance, narcotic and non-narcotic as seized herein. majority, Nor can I with the by amending “mixture,” specifically legisla- statute to include the term merely ture has restated that the focus of the statute was always upon the of the “mixture” opposed the controlled “substance” for purposes. Rather, I believe the in amending the statute omission on acknowledged original point. this “It is a rule construction that a change ordinarily change legislative statute indicates a intent.” Bachman, 280, 289, Masland v. 473 Pa.
(1977). I find it more reasonable to legisla- conclude ture, in light of the multitude of controversial on litigation this question revised the statute to now include the term “mixture” scope as such was not within the of the original Act. Further, as the statute in question penal nature it must all strictly interpretations construed with liberal in favor of Wooten, the defendant. 519 Pa. (1988). I majority, A.2d 876 believe the uphold its zeal to issue, the statute at applying legislative amendment to this penal provision retroactively. disregard actual words of the in an attempt achieve a desired result.
I respectfully dissent.
2).
(199
-Pa. -,