*1 I wоuld remand for a appeal. support determination of through guidelines utilization of the only.
v. JONES, Appellee. Christina Superior Pennsylvania. Court of
Argued Nov. 1991.
Filed *2 Lebowitz, Ann Philadelphia, Asst. Dist. Philadel- Atty., Com., phia, appellant. Pearson,
Jeffry Philadelphia, S. for appellee. CAVANAUGH, HOFFMAN, Before and POPOVICH JJ. POPOVICH, Judge.
This is an appeal by the Commonwealth of Pennsylvania from the of judgment imposed sentence by Court of Common Pleas of Philadelphia County, following convic- charges tion of of possession of cocaine and of pоssession cocaine with intent to deliver. Appellee was sentenced to not eighteen less than months nor more than thirty-six months of incarceration to be by followed two years probation Herein, of and a fine of the Com- $5000. monwealth contends that imposed an illegal sentence when refused to the mandatory minimum provided 7508(a)(3)(ii).1 sentence Pa.C.S.A. We pertinent part, provides: 18 Pa.C.S.A.§ (a) Notwithstanding any provisions General other of this or rule.— any contrary, following provisions apply: other act tо the shall ****** (3) 13(a)(14), person violating (30) A who is convicted of section Substance, (37) Drug, or of The Controlled Device and Cosmetic Act salt, any where the controlled substance is pound, leaves or is coca com- salt, preparation any derivativе of coca leaves or is compound, preparation chemically equivalent derivative or which is we vacate the agree Accordingly, with the Commonwealth. remand for sentencing. of and judgment facts: following January The record reveals On possession tried convicted appellee was of cocaine with intent deliver. possession cocaine appellee sold a “dime” Testimony bag at trial revealed police an officer from her home. undercover cocaine sale, obtained search warrant for police Based on alia, found, inter Therein, police home. refrigerator, top on the cocaine “Spice of cocaine inside a bottle marked packets small Supreme” twenty was inside a kitchen cabinet asserted bedroom. her son’s.2 actually were notified appellee Prior to the Commonwealth mini- imposition to seek of its intention *3 7508(a)(3)(ii). At the mum under 18 Pa.C.S.A. 12, 1989, on the sentencing hearing Commonwealth precise weight of the of the cocaine introduced evidence 19.951 large bag weighted grams, the involved: in the twenty-four packets “Spice Supreme” the bottle twenty packets weighed and the weighted grams 3.728 any any or is mixture contain- or identical with ing any these substancеs except coca leaves or or of these substances decocainized (extracts) not of coca leaves which do contain cocaine extracts ecgonine shall, conviction, upon mandatory be mini- sentenced imprisonment and a as set forth in this subsec- term of fine mum tion: proceeds from the amount ficking containing larger (ii) proceeds grams: when the amount as is sufficient offense: five as the substance the defendant three from sufficient to aggregate weight years [******] illеgal activity!.] years illegal activity; involved at least in has been convicted of another exhaust prison prison exhaust is and a fine of of the however, assets the assets utilized in and $30,000 compound or mixture grams utilized if at the time of $15,000 or such and drug less and the or lаrger such than traf- of cocaine and testified that "Spice Supreme" jar in a were found cabinet contained in stairway leading her kitchen to the basement from located in the where her son resided. 2.722 grams grams for a total of 26.401 Based cocаine. evidence, that, on this court found a preponderance evidence, had Commonwealth established that appellee possessed with intent to deliver in of ten excess grams of then properly imposed cocaine. The court imprison- three to six year sentence of $15,000 ment and a fine. trial filed a Appellee’s counsel sentence, timely petition alleging, reconsideration of alia, inter actually constructively and, possess residence, all the cocainе in her there- found fore, However, her sentence was illegal. motion was denied.
Twenty-eight days 10,1989, after sentencing, May on new counsel filed a second petition reconsider later that day, same the trial court vacated appellee’s sеn- alia, determine, tence inter pending hearing to whether trial Hearings counsel was ineffective. on appellee’s mo- 2, 1990, tion were on February held 1990 and March argued new counsel also that his client did possess not all of in question.3 3, 1990,
Eventually, July apрellee was resentenced. Inexplicably, time of having rendered a of verdict the lower court re-examined the facts of the case and appellee possessed determined that only bedroom, the 2.722 found in cocaine her not 26,401 the entire grams of found in home.4 The proved beyond determined that the Commonwealth reasonable doubt that appellee actually or constructively only those in her drugs found bedroom. Con- *4 trary trial, to the at testimony credited the court issued a finding new fаctual of indicated 1990, hearing 3. At the held on trial March counsel testified concern- ing appellee’s allegations that he was ineffective. At the hearing, appellee’s allegations the trial dismissed that trial counsel was ineffective. findings 4. We notе that these “new" factual were made well over one year original adjudication guilt, they not were based evidence, on appellee’s but new rather on a re-evaluation of the officers’ and credibility. 486 which contained Supreme” jar
аnd the “Spice in in found a located of cocaine were cabinet small to the from the kitchen basement where going stairway finding, on that the court decided Based her son resided. in constructively possess the cocaine appelleе that her son cabinet, possessed but rather that stairway objection, the Commonwealth’s of cocaine.5 Over cache eighteen thirty-six sentenced court then lower in a fine of accordance imprisonment $5000 months 7508(a)(3)(i).6 18 with Pa.C.S.A. § record, we find that the lower Having reviewed the reassessing facts of the case the time in court erred convicted of Pa.C.S.A. sentencing. Appellee was 780-113(a)(30),possession of controlled substance with § in participation her admitted intent deliver. officer. of cocaine to an undercover packet sale of a “dime” home, in found her grams cocaine were twenty-six Over areas of home. or in common her either her bedroom prov more than satisfied burden The Commonwealth appellant aсtually doubt that beyond a reasonable ing Cf, 26.401 of cocaine. grams all constructively possessed v, 307-310, Mudrick, 510 Pa. Commonwealth Santiesteban, v. (1986); Commonwealth 1212, 1213-1214 (1988). 18, 20-22, A.2d 1074-1075 Indeed, necessarily found Common the court below adjudicated appellee proof when met its burden wealth and denied original correctly imposed of sentence. reconsideration her first motion for 18 Pa.C.S.A. applying At when to determine required only court was 7508(a)(3)(ii),the by preponderance established whether the Commonwealth apрellee possessed cocaine which that evidence presented to absolutely no was establish note evidence 5. We stairway cabinet. access to the appellee did not have 7508(a)(3)(i), provides that the minimum 6. 18 Pa.C.S.A. § intent to deliver person have with found to sentence for grams” year is one and less than "at least 2.0 prison fine of $5000. and a
487 weighed ten grams least and less than one hundred 7508(b). grams. Certainly, See 18 Pa.C.S.A. the Com- monwealth sustained their burden of proof through expert testimony weight as to the exact in question. Perez, Commonwealth v. See Pa.Super. 397 580 A.2d (1990) (extrapolation weight 781 samplings from suffi- prove weight). cient to Rosario, Commonwealth v.
As we stated in
400
505, 511,
Pa.Super.
(1990),
583 A.2d
1232
“we hold
that once
is found
party
adjudicated
elements
of the offense must be fully сonsidered and cannot be
sentence____
disregarded when fashioning a
The sentenc
ing court is
script____”
not allowed to rewrite the
Instant
ly, although adjudicating appellee guilty of possessing co
deliver,
caine with intent
to
the lower court decided to
“rewrite
script” by
finding
possess
all
cocaine found
type
residence. This
re
examination
the facts at the time of
sentencing
order
permit
to
court
a more lenient sentence
ignores
legislative
mandate and will not be condoned.
Rosariо,
Ct. -,
400 Pa.Superior
court will vacate the sentence and remand for resentenc ing); 7508(d).7 18 Pa.C.S.A. § many We passed
7. note that months that between the original sentencing and second the court received numer- prosecutor ous letters behalf which the characterized as N.T., 7/3/90, "bring eyes p. able tears of Attila the Hun.’’ letters, Although receiving admitted none of them appears in the record. rendering today, recognize In our we decision judgеs imposing mandatory are with task sometimes faced unduly sentence which under seems harsh the circumstances. How- ever, Legislature we remind them that has seen fit to mandate case remanded for
Judgment vacated and opin- of this provisions in accordance with *6 relinquished. ion. Jurisdiction J., opinion. a CAVANAUGH, dissenting files dissenting. CAVANAUGH, Judge, the dissent from the conclusion reached I respectfully illegal an sentence. imposed that lower court majority the find court’s sentence was a Rather, I would that the lower minimum sentence application proper provision. fact, verdict, a as the finder the
At time it rendered the no making that it was determina- stated specifically court The court said the amount of involved. tion as to be, “appropriate to of amount it considered the issue that Jan. Testimony, at sentence.” Notes for determination findings in special made no 12, 1989, at 100. The court did not indicate then which the verdict and connection with of the defense’s evidence the which Commonwealth’s as true. accepted it court sentencing hearing that the at the initial
It was of the amount of cocaine question into the delved issue, on this hearing argument After by appellee. years, three to six which a sentence of imposed court that the amount that it determined indiсated grams. less than 100 least was at involved retained juris- it period which thirty-day Within sentence vacated diction modify. to petition a upon grant of the trial court authority
It is within
original
it vacates
sentence where
modify
petition
See,
imposed.
days after it was
thirty
sentence within
1701;
1410, Comment;
Common-
Pa.R.A.P.
Pa.R.Crim.P.
(1988).
593,
Feagley,
wealth v.
sentences,
they
no discretion
have
certain
lesser
Logan,
Cf.,
inequity in the sentence.
penalty, despite apparent
supra.
procedure
The
of this
is to
purpose
allow the
court to
lower
process
reconsider
of which necessarily
implicates a reexamination of the
upon
facts
it
based
original sentencing
its
decision.
is proper
This
function of
the court when modification of
under considera-
See,
Cottmаn,
Commonwealth v.
453,
tion.
327 Pa.Super.
(1984).
Although the time lapse between the vacation of the original imposition sentence and the second sentence is, indeed, considerable, involved this case acted within authority July on Its determination at time had errеd at original sentencing hearing in calculating involved, permissible amount was a exercise of its duties. *7 not,
The court did at verdict, the time it announced the indicate which testimony it credited. The majority assumes that the court believed all of the Commonwealth’s еvidence in reaching the guilty verdict. This conclusion is erroneous because, above, as noted the court at time of the verdict specifically indicated issue amount would be at sentencing. decided The re-assessing of facts that oc- curred was not of facts found in conjunction with the verdict, rendition but of facts implicitly decided first sentencing. This latter factual assessment by the is precisely properly subject what process reconsideration sentence. I
Because find that the lower court’s sentence was within the law and took minimum, account I affirm would judgment sentence.