*1 Id., 155, 634 A.2d at time of its birth.” non-viable at the ered 602. colleagues, can esteemed my Lacking perspicacity reversed, as order must be Judge that Tressler’s agree only conceded, the case already distinguished judge inconsistent with proceedings for further remanded court. supreme of our pronouncements most recent Pennsylvania, Appellant, COMMONWEALTH
v. WILLIAMS, Appellee. Tyrone Pennsylvania. Superior Court Argued Sept. 1993. Dec. 1993.
Filed *2 Com., Jr., for Burns, Atty., Philadelphia, Asst. Dist. Hugh appellant. Krakower, appellee. for Philadelphia,
Stanley R. McEWEN, ROWLEY, Judge, President and Before BECK, TAMILIA, CIRILLO, OLSZEWSKI, SOLE, DEL JOHNSON, JJ. KELLY SOLE, Judge:
DEL to deter- asks us the Commonwealth appeal, Through illegal be- of sentence is Appellee’s whether mine 7508(a)(3)® of 18 Pa.C.S:A. the mandates it violates cause entitled, trafficking Code, “Drug Crimes (Supp.1992), penalties”1. sentencing and as follows: subsection reads
1. The (37) 13(a)(14), violating section person who is convicted A Substance, Act where Drug, Cosmetic Device and Controlled charged with was Appellee case reveal that The facts of this place took The first offense offenses. drug trafficking three in possession found 2, 1988, was Appellee when on November Thereafter, May Appel- of cocaine. grams of 4.3 cocaine 6.14 grams another possessing arrested for lee was trafficking drug third 26, 1991, committed his he May and on On of the substance. grams than involved less offense which regard with plea 14,1991, guilty entered Appellee August guilty to pleaded he on October third offense and cases were then offenses. The three first and second 26, 1991, Appel- and on November for consolidated received For his second lee was sentenced. of two to five imprisonment term of of a minimum a sentence thousand dollars. a fine of five pay and was ordered sentence, run then the same The trial court concurrent, first offense.2 Appellee’s *3 salt, any compound, or is is cocoa leaves the controlled substance salt, any compound, preparation leaves or is of coca derivative chemically equivalent or identical preparation which is derivative or containing any of these any or is mixture any with of these substances of coca leaves except coca leaves or extracts substances decocainized shall, (extracts) ecogine upon cocaine or which do not contain conviction, imprison- mandatory minimum term of be sentenced to a in this subsection: ment and a fine as set forth (i) weight compound or mixture contain- aggregate when the grams least 2.0 and less than ten ing the substance involved is at $5,000.00 prison larger or such grams; year in and a fine of one the assets utilized in and the amount as is sufficient to exhaust however, proceeds illegal activity; if at the time of sentenc- from the drug trafficking of another ing the defendant has been convicted $10,000.00 larger years prison and or such amount offense: three in proceeds in the from exhaust the assets utilized as is sufficient to illegal activity; the 1451, 219, 4, § 18 Pa.C.S.A. December P.L. No.
As amended 7508(a)(3)(f) (Supp.1992). § reflected, discrepancy between the sentence 2. We note that there is a Transcript Sentencing and as written Appellee’s first purposes Opinion and Order. For of the discussion in the trial court’s relied, case, parties, both on the trial of the facts of this we have as have appears year judgment in its to five of sentence which court’s two appears on the back of the Informa written Order. This endorsement sentencing hearing. the Common tion and is dated the same date as Isabell, Commonwealth v. wealth v. 503 Pa. (1984). Fleming, Pa.Super. A.2d 1214 The Commonwealth this court to urges Appellee’s vacate sentence, of was relation to his second It that the illegal offense. claims sentence is because court, sentence, the trial the determining erred in failing mandatory sentencing provision the minimum apply contained 7508(a)(3)(i). § in 18 Pa.C.S.A.
Appellee argument by counters the stating Commonwealth’s adjudicated not any that because he had of one of guilty offenses, any his subsequent the commission of- prior fense(s), the is wholly inapplicable. Appellee section sets First, forth his arguments support position. Appel- various lee our to the fact that 18 directs attention 7508(a)(3)(i) December, 1990, was amended after date Appellee argues first offense. the commission his statute, version of the his first pre-amendment under could have to enhance second offense offense not served and sentenced for first because he had not been convicted of his offense. at time of the commission second offense that, “a position pre- us to Ultimately, adopt asks a form the for enhancement of may case basis amendment 8). advancing By case.” post-amendment (Appellee’s brief however, express lan- Appellee ignores arguments, these guage of statute. 7508(a)(3)® mandatory sentencing provi- a
18 Pa.C.S.A. that, “if at the time specifically states sion which drug trafficking of another has been convicted the defendant added]”, minimum sentence of mandatory [emphasis clearly This directs language appropriate. three *4 determine, sentencing, the time of to sentencing court under previous a conviction has the defendant whether Act3, if and Substance, Device and Cosmetic Drug, Controlled We also minimum sentence. mandatory so, impose to has legislature the fact that the attention Appellee’s direct of addition, one sentence Appellee also received note that we In however, sentence, is This for third offense. two appeal. subject present of the Act, Substance, P.S. Drug, Device and Cosmetic 3. Controlled The (30), (37). 780-113(a)(14), conviction”, as it term, “previous defined specifically 7508. throughout Section used section, it this of
(a.l) purposes conviction. —For Previous of has been convicted defendant that a be deemed shall the defendant offense when trafficking drug another 13(a)(14), under section another offense of been convicted Substance, Drug, Device (30) (37) of the Controlled of statute any offense under Act, a similar or of Cosmetic States, or not whether state or the United any of concerning that has been sentence offense. 4,§ No. P.L. December amended As 7508(a.l). added]. [emphasis mind, of the we turn to the facts language With for second sentencing Appellee’s of At the time case. present cocaine, had 6.1 of offense, grams involved 7508(a.l), of convicted, in Section as defined previously Substance, and Cosmet Drug, Device violating the Controlled cocaine). (i.e. grams of 4.3 Act, possession ic for the language Therefore, express with the in accordance impose statute, failing trial court erred find that the we minimum sentence. mandatory Appellee, upon that a addition, adopt Appellee’s position In we cannot an enhancer for a serve as offense cannot pre-amendment present case is The focus offense. post-amendment for time of it at the appeared record as Appellee’s time, that resulted the conviction offense. At that his second offense, fit clearly first Appellee’s from the commission it true conviction”. While “previous the definition within applied post- could not have sentencing court for sentencing Appellee the statute version of amendment to the effective date prior which occurred his first amendment, that is not the issue here. it is also true that on record as another conviction first offense was Appellee’s sentencing on the second Appellee’s that existed at the time of statute, and, could be properly under the amended requiring sentencing considered as a factor offense. his second
172 that, also note as of part argument,
We this makes Appellee 7508(a)(3)(i) a reference passing application that of Section deprive equal may protection defendants of under law. the therefore, Appellee develop theory does not this and can we state fail how only application that we to see of the amended version of the statute would cause the result suggested by It clear the is Appellee. provision uniformly that to be all applied subject defendants to it at the time of sentenc- ing.
Accordingly, Appellee’s judgment we vacate of sentence for at Bill No. and second offense June Term remand this matter to the trial court for the of re- purposes sentencing respect charge. with to that relinquished.
Jurisdiction CIRILLO, concurring Opinion. a dissenting J. files & KELLY, JOHNSON, dissenting files a J. Opinion J. joins.
CIRILLO, concurring dissenting: Judge, interpretation of the lan- majority’s not the dispute I do recently amended set forth guage 7508(a)(3)(i). of com- Clearly, this statute version “if at the sentence of three minimum pels mandatory a has convicted anoth- the defendant time 7508(a)(3)(i). I 18 Pa.C.S.A. trafficking offense.” drug er has however, amendment to the effect this my opposition, note cases, penalty enhanced and future result of case spirit eroded language as I such believe philosophy. recidivist reasoning following submit, instead, adhere to the that we apply not determining whether 7508(a): in section found
provision
prescribed
penalty
the heavier
intended
It was
upon
should descend
second
commission
re-
one,
being
who after
incorrigible
anyone except
penalty
If the heavier
his neck.”
“still hardeneth
proved,
...
upon
violation
visited
for the second
prescribed
*6
a first
reproof
had the
of the
who
benefit
one
has
is
conviction,
the statute
lost.
purpose
the
then
Kane,
203, 204,
A.2d
v.
Pa.Super.
430
633
Commonwealth
Sutton,
banc)
v.
(1993) (en
(quoting Commonwealth
1210, 1211
see also
(1937));
556,
189 A.
558
Pa.Super.
125
Tobin,
460, 463-464,
A.2d
v.
411
601
Commonwealth
Pa.Super.
(1993);
322,
A.2d
aff'd,
1258,
(1992),
533 Pa.
623
814
1260
Dickerson,
249,
[l]egislation authorizing
imposition
persist
on
is
at
those who
ment
recidivists
directed
having
of an offense.
criminality
once
been convicted
after
alleged conviction
It
is thus
essential
that
the
generally
the date
offense for which the
shall have
preceded
imposed.
be
punishment
sought
increased
to
Dickerson,
39
259,
A.2d at 771
Pa.Super.
(quoting
404
590
6).
§
Am.Jur.2d Habitual Criminals
behind
recidivist
reasoning
that
the
the
recognize
While
stat
interpreting
borrowed from cases
philosophy has been
here,
essential, my
different
the one at
it is
utes
than
issue
in our
interpretation
remain consistent
opinion,
we
Kane, supra (applying
See
penalty
provisions.
7508,
section
a defendant must be convict
pre-amendment
before
commission of the subse
prior
ed of the
Common
attach);
offense for
enhanced
quent
an
sentence
(1992) (en
v.
450,
Beatty,
wealth
Pa.Super.
411
The clear of the recidivist as philosophy, evidenced 7508(a) authority, dictates that the new section foregoing The applied application be same fashion. uniform *7 conti- provisions undoubtedly recidivist would serve ensure stability judicial decision-making. nuity, efficiency, and our Surely goal judiciary benefit both this.is would society as a whole. Thus, of the recidivist underlying purpose to the adhering Pennsyl- by appellate courts interpreted as philosophy vania, sentence, which affirm I would Williams’ penalty. does not include an enhanced JOHNSON, dissenting: Judge, defendant, Williams, other guilty had Tyrone pled The and he County, himby Philadelphia within offenses committed at one time. believe on all the offenses was sentenced minimum attempt aggregate to increase Commonwealth’s on this years’ incarceration to three years’ from two sentence protection increase the nothing to absolutely appeal does spirit the clear and, indeed, flies in the face of public Procedure, Rule 1402. of Criminal Rules Pennsylvania say: is to guilty, found Moreover, was not Williams the commission well after convicted, offense until of the prior offenses were committed All three offense. subsequent first even the guilty plea entered well Williams before Pa.C.S. of 18 provisions The recidivist offense. Commonwealth therefore, 7508(a)(3)(i) not, applied. be may
175
(1993).
See and
Kane,
A.2d 1210
Pa.Super.
v.
Dickerson,
249, 590
v.
404 Pa.Super.
compare Commonwealth
(1993).
Pa.
Edward right Mellon, Mellon, own Edward His Deceased and J. Mae Mellon, Edward Mae Children Deborah Behalf of the and on Mellon, Minor, Appellants, Mellon, M. A Sean A Minor and M.
v. Labs, Inc., CO., Bay Bell Pharmacal DRUG BARRE-NATIONAL Co., Halsey Drug Co., Inc., Consolidat Chemical Corp., Carroll Dixon-Shane, Inc., Cumberland, Inc., Humco Corp., Midland ed Inc., Purepac Pharmaceuticals, Phar Inc., Laboratory, Parmed Inc., Rugy Laboratories, Aid, Co., Roxane Rite maceutical Inc., Inc., Laboratories, Spencer-Mead, Laboratories, Scherer Appellees. Corporation, Veratex *8 Pennsylvania. Superior Court Argued 1993. Oct. 30, 1993.
Filed Dec.