COMMONWEALTH of Pennsylvania v. Gary L. SWAVELY, Appellant
554 A.2d 946
Superior Court of Pennsylvania
February 23, 1989
Argued June 20, 1988.
KELLY, Judge, concurring statement:
I join in Judge Olszewski‘s cogent opinion. Appellant‘s own version of the facts clearly demonstrated that he was not free from fault in provoking or continuing the difficulty which led to the final deadly confrontation; hence, he was not entitled to a jury instruction on the issue of self-defense. See Commonwealth v. Butler, 516 Pa. 522, 533 A.2d 992 (1987) reversing 359 Pa.Super. 626, 515 A.2d 616 (1986) (per curiam order and memorandum, unpublished) (Kelly, J., dissenting); accord Commonwealth v. Grove, 363 Pa.Super. 328, 346, 526 A.2d 369, 378 (1987) (jury instructions are only to be given when there is evidence to support such a charge); Commonwealth v. Alvin, 357 Pa.Super. 509, 522, 516 A.2d 376, 383 & n. 3 (1986) (en banc) (unanimously affirming that a valid claim of self-defense cannot be established when the evidence reveals that the defendant was not “free from fault in provoking or continuing the difficulty which resulted in the injury;” collecting and analyzing cases).
Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Com., appellee.
Before MONTEMURO, KELLY and POPOVICH, JJ.
KELLY, Judge:
We are called upon, in this appeal, to determine whether the imposition of separate consecutive sentences for delivery of two different prohibited narcotics in a single plastic vial and in a single sale violated the double jeopardy proscription against multiple punishments for a single offense, and whether the imposition of separate consecutive sentences violated Pennsylvania‘s merger doctrine. Upon careful review of the record and the applicable authority, we find neither the double jeopardy proscription nor the Pennsylvania merger doctrine were violated. Accordingly, we affirm the trial court‘s order denying appellant‘s petition for post-conviction relief.
Appellant, Gary L. Swavely, was arrested and charged in six separate counts with violating the Controlled Substance, Drug, Device and Cosmetic Act (the Act),
Appellant subsequently filed a petition under the Post-Conviction Hearing Act alleging that his post-trial counsel was ineffective for failing to challenge the legality of the sentence. Specifically, appellant claimed that post-trial counsel should have challenged the trial court‘s imposition of consecutive sentences which appellant claimed violated his constitutional right against double jeopardy. Appellant claimed that he was sentenced twice for the same criminal offense. Appellant also argued that the Commonwealth used perjured testimony to obtain his conviction and that post-trial counsel was ineffective for failing to raise this issue. Following a hearing held December 23, 1987, the trial court denied appellant‘s request for post-conviction relief. This timely appeal followed.
Appellant‘s only contention on appeal is that his trial counsel and post-trial counsel were ineffective in failing to raise and preserve in the trial court and in this Court on direct appeal the issue of whether the appellant should have been sentenced twice for the same criminal transaction. We find no merit to this contention.
Initially, we note that appellant‘s claim, that trial counsel was ineffective for failing to challenge in the trial court the legality of the sentence imposed, has been waived as it was not raised at the earliest stage of the proceedings at which trial counsel no longer represented appellant. Commonwealth v. Cargo, 498 Pa. 5, 19, 444 A.2d 639, 645 (1982); Commonwealth v. House, 371 Pa.Super. 23, 27, 537 A.2d 361, 363 (1988); see also Commonwealth v. Fuller, 353 Pa.Super. 120, 509 A.2d 364 (1986). The question we are concerned with in this appeal is whether appellate counsel was ineffective for failing to challenge, on direct appeal, the legality of the sentence imposed. Of course, this claim could have been presented directly as a challenge to the legality of sentence instead of indirectly via an ineffective assistance of counsel claim. We note, however,
Preliminarily, we note that the law presumes that counsel is effective and that the burden of establishing ineffective assistance of counsel rests upon the appellant. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Petras, 368 Pa.Super. 372, 534 A.2d 483 (1987). In order to establish a claim of ineffectiveness, appellant must show that: by act or omission counsel was arguably ineffective; counsel‘s act or omission could not have had an objectively reasonable basis designed to effectuate appellant‘s interest; and appellant was prejudiced by the act or omission in that but for the arguably ineffective act or omission there is a reasonable probability that the result would have been more favorable to appellant. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); see also Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Carelli, 377 Pa.Super. 117, 546 A.2d 1185 (1988); Commonwealth v. Petras, supra.
As stated previously, appellant‘s underlying claim is that imposition of separate consecutive sentences for delivery of two different prohibited narcotics in a single sale and in a single package violated the double jeopardy proscription against multiple sentences for a single offense and the Pennsylvania merger doctrine. After careful review, we find this claim wholly without merit.
I. DOUBLE JEOPARDY
The Double Jeopardy Clause of the
In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court enunciated the appropriate test to be applied to determine whether a single transaction violates two distinct statutory provisions. The Court stated:
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. ‘A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’
Id. at 304, 52 S.Ct. at 182, 76 L.Ed. at 309. (Emphasis added). See also United States v. Woodward, 469 U.S. 105, 105 S.Ct. 611, 83 L.Ed.2d 518 (1985); Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). Thus, for two crimes arising from the same transaction to constitute the same offense, a comparison of their statutory elements must reveal that proof of one offense will necessarily prove the other. Illinois v. Vitale, supra. Applying the test, we must conclude that here, although both counts arise from a
Instantly, appellant was charged in separate counts with two violations of
Additionally, the trial court found, and we agree, that assuming, arguendo, the delivery of the two drugs in one sale constituted a single offense, the double jeopardy clause would not be violated by cumulative punishments because our legislature specifically authorized it for the particular offense involved. Whalen v. United States, 445 U.S. 684, 691-92, 100 S.Ct. 1432, 1437-38, 63 L.Ed.2d 715 (1980); see also Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); United States v. Gomberg, 715 F.2d 843 (3rd Cir. 1983); United States v. Boffa, 688 F.2d 919 (3rd Cir. 1982).
The statutory scheme of the Act divides the list of controlled substances established by the General Assembly into five separate categories. These five categories are designated in the Act as “Schedules” and are numbered Schedule I through Schedule V. The placement of a substance within a particular Schedule depends upon its potential for abuse, its accepted medical use, and its perceived dangerousness.
By categorizing controlled substances in this manner, the legislature has determined that all controlled substances are not alike, but that each is distinctive and that its treatment under the Act depends upon its peculiar dangerousness, potential for abuse, and medical usefulness. Thus, Section 780-104 is not merely a list of prohibited controlled substances; rather, it is a detailed expression of the legislature‘s qualitative analysis of the relative threat to the community posed by each of the various specified substances.
Recognizing that there are significant differences between controlled substances, the legislature authorized pun-
Any person who violates clause (12), (14) or [clause] (30) of subsection (a) with respect to:
(1) A controlled substance or counterfeit substance classified in Schedule I or II which is a narcotic drug, is guilty of a felony and upon conviction thereof shall be sentenced to imprisonment not exceeding fifteen years, or to pay a fine not exceeding two hundred fifty thousand dollars ($250,000), or both or such larger amount as is sufficient to exhaust the assets utilized in and the profits obtained from the illegal activity.
(1.1) Phencyclidine; methamphetamine, including its salts, isomers and salts of isomers[,]; coca leaves and any salt, compound, derivative or preparation of coca leaves; any salt, compound, derivative or preparation of the preceding which is chemically equivalent or identical with any of these substances, except decocanized coca leaves or extract of coca leaves, which extracts do not contain cocaine or ecgonine; and marihuana in a quantity in excess of one thousand (1,000) pounds, is guilty of a felony and upon conviction thereof shall be sentenced to imprisonment not exceeding ten years, or to pay a fine not exceeding one hundred thousand dollars ($100,000), or both, or such larger amount as is sufficient to exhaust the assets utilized in and the profits obtained from the illegal manufacture or distribution of these substances.
(2) Any other controlled substance or counterfeit substance classified in Schedule I, II, or III, is guilty of a felony and upon conviction thereof shall be sentenced to imprisonment not exceeding five years, or to pay a fine not exceeding fifteen thousand dollars ($15,000), or both.
(3) A controlled substance or counterfeit substance classified in Schedule IV, is guilty of a felony and upon conviction thereof shall be sentenced to imprisonment not
exceeding three years, or to pay a fine not exceeding ten thousand dollars ($10,000), or both. (4) A controlled substance or counterfeit substance classified in Schedule V, is guilty of a misdemeanor and upon conviction thereof shall be sentenced to imprisonment not exceeding one year, or to pay fine not exceeding five thousand dollars ($5,000), or both.
Pursuant to authority delegated by the legislature, the Sentencing Commission has further refined the sentencing process for drug cases. The revised guidelines for sentencing in drug cases trichotomize the applicable sentencing ranges for narcotics, cocaine, phencyclidine, methamphetamine, and marijuana based on the quantity of the drug involved. There are also new offense gravity score listings for drug offenses which correspond to the new sentence range chart. See New Guidelines Promulgated, 5 Monitor, 1-3, 15-16 (Pa.S.C., April 1988); §§ 303.8(d), 303.9(c). These changes were specifically designed to remedy the perceived excessive leniency of the guidelines formerly in effect. See New Guidelines Promulgated, supra, at 1.
Generally speaking, the gradation and sentencing structure for drug offenses indicates an intent to delineate offenses by the drug involved and to determine where within the statutory limits to sentence the offender based upon the amount involved and other general sentencing factors. Logically, when two drugs are transferred in one illegal sale there are three possible sentencing alternatives under the applicable statutes and revised guidelines.
The first possible scenario involves the delivery, in a single sale, of two different forms of the same substance; e.g. marijuana and hashish. Because hashish falls within the statutory definition of marijuana, only one type of controlled substance has been provided and therefore separate convictions must merge for sentencing purposes. See
The second possible scenario involves the delivery of a mixture or compound, in a single unit, containing a detectable amount of more than one controlled substance. Pursuant to the new guidelines, the mixture or compound is to be deemed to be composed entirely of the controlled substance which has the longest suggested guideline penalties. 204 Pa.Code § 303.9(c)(1) (Sentence Range Chart). Again, the weight of both controlled substances are aggregated to determine the amount of the substance involved for sentencing purposes.
The third possible scenario is that presented in the instant case. Neither of the sentencing alternatives previously discussed is applicable here. Tuinal and Talwin do not constitute different forms of the same substance, and they were separated, rather than contained in a single compound, when delivered.
This particular scenario lends itself to two possible sentencing alternatives. First, the conviction for delivery of Talwin could be deemed to merge with the conviction for delivery of Tuinal and appellant would be sentenced for the delivery of the substance with the longer penalty. However, appellant would thereby avoid punishment for the offense of illegally delivering Talwin based solely on the fortuitousness of having made the transfer in a single sale in which an even more dangerous drug was also transferred. The second option is to recognize that while only one sale occurred, two separate offenses were committed and appellant should be sentenced separately for both offenses. In light of our legislature‘s concern with the drug problem facing our Commonwealth, we find the latter interpretation is the far more reasonable one.
II. MERGER DOCTRINE
In a related assertion, appellant argues that even if multiple punishment does not place the appellant in double jeopardy, it is, nonetheless, a violation of the Pennsylvania merger doctrine. Again, we disagree.
The merger doctrine acts to limit the multiplicity of sentences which may be handed down for those crimes which, in effect, constitute a single crime. According to the decision by our Supreme Court in Commonwealth v. Williams, 514 Pa. 124, 522 A.2d 1095 (1987), there is a two pronged test which must be satisfied before merger of the two offenses is required:
First, the crimes must ‘necessarily involve’ one another. Second, even if the two crimes necessarily involve one another, they do not merge if there are substantially different interests of the Commonwealth at stake and the defendant‘s act has injured each interest.
Williams, supra, 522 A.2d at 1101; see also Commonwealth v. Williams, 368 Pa.Super. 315, 534 A.2d 101 (1987).
A sentence imposed pursuant to
thereof, which is chemically identical with any of the sub-
By categorizing a controlled substance according to its degree of danger and potential for abuse and scaling the sentence to be imposed accordingly, the legislature has manifested a clear intent that the punishment imposed be inextricably linked with the particular drug or drugs involved in the transaction. Furthermore, we find the interest the legislature sought to vindicate, i.e. deterring drug use and drug trafficking, increases qualitatively as well as quantitatively with the dangerousness of the drug involved. To allow a defendant to deliver several drugs in one transaction but restrict his sentence because only one delivery occurred, regardless of the type of drugs sold, would undermine the legislative intent embodied in the Act,
Based upon the foregoing, we find appellant‘s underlying contention is wholly without merit, therefore, his appellate counsel cannot be considered ineffective for failing to challenge the legality of this sentence on direct appeal. Commonwealth v. Wells, 513 Pa. 463, 468, 521 A.2d 1388, 1390 (1987).
Accordingly, we affirm the order of the trial court dismissing appellant‘s P.C.H.A. petition.
ORDER AFFIRMED.
POPOVICH, J., files a dissenting statement.
POPOVICH, Judge, dissenting:
Upon review of the majority‘s opinion, I dissent. I am convinced that two separate judgments of sentence for delivery of a controlled substance arising from a single delivery of a single vial containing two different controlled substances violate the double jeopardy proscription against multiple punishments for a single offense.
The Drug Act prohibits: “the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance....”
In sum, I would hold that when two different drugs, contained in a single vial, are delivered in a single transaction, only one violation of the Drug Act occurs. The appellant is correct: The double jeopardy proscription against multiple punishments for a single offense has been violated; and appellate counsel was ineffective for failing to attack the legality of sentences. Accordingly, under the facts before us, the separate sentences for delivery should be vacated and a single sentence should be imposed based upon the drug in the Schedule with the greater possible sentence, that being Tuinal.
KELLY
Judge