HomeMy WebLinkAbout94-0013 CriminalCOMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v.
:
GERALD J. LAWSON :
OTN: E505340-3 : 94-0013 CRIMINAL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Oler, J., March 2, 1995
In this case, the Commonwealth has appealed to the Superior
Court from a judgment of sentence imposed by the writer of this
Opinion.~ The basis for the appeal is that a more severe mandatory.
sentence should have been imposed than the mandatory sentence which
was imposed.2 This Opinion in support of the judgment of sentence
is written pursuant to Pennsylvania Rule of Appellate Procedure
1925(a).
Statement of Facts
Defendant is a teenager with no prior record,~ who has
received a sentence of one to three years in a state correctional
institution on a drug charge.4 He is the African-American son of
a Philadelphia policewoman and businessman,s He worked while
~ See Notice of Appeal, filed January 23, 1995.
2 See Concise Statement of Matters Complained of on Appeal,
filed February 6, 1995.
~ Presentence Investigation Report, Court's Exhibit 1,
Sentencing Proceeding, January 3, 1995.
4 Order of Court, January 3, 1995.
s Presentence Investigation Report, Court's Exhibit 1,
Sentencing Proceeding, January 3, 1995; letter, December 22, 1994,
Defendant's Exhibit 1, Sentencing Proceeding, January 3, 1995.
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attending high school in Philadelphia and, at the time of sentence,
was a second-year student at Thaddeus Stevens School of Technology
in Lancaster, Pennsylvania, about to graduate.6 His mother was
described as "shattered" by his arrest,7 and she was overcome at
sentencing.8
Defendant's bail was revoked by the Court at the conclusion of
the sentencing proceeding, and he is presently in prison, serving
the sentence imposed.9 The judgment of sentence from which the
Commonwealth has appealed is as follows:
ORDER OF COURT
AND NOW, this 3rd day of January, 1995,
the Defendant, Gerald J. Lawson, now appearing
in Court for sentencing with Ellen K. Barry,
Esquire, First Assistant Public Defender, and
having previously been found guilty following
a jury trial of Possession with Intent to
Deliver a Schedule II Controlled Substance,
namely, cocaine, and the Court being in
receipt of a presentence investigation report,
and the Court finding by a preponderance of
the evidence that the amount of cocaine
possessed by Defendant with intent to deliver
it was at least two grams and less than ten
grams, the sentence of the Court in accordance
with the mandatory sentencing provision of 18
6 Presentence Investigation Report, Court's Exhibit 1,
Sentencing Proceeding, January 3, 1995.
7 Letter, December 22, 1994, Defendant's Exhibit 1,
Sentencing Proceedings, January 3, 1995.
8 N.T. 4-5, Sentencing Proceeding, January 3, 1995.
9 N.T. 10, Sentencing Proceeding, January 3, 1995.
Obviously, the Defendant's graduation from post-secondary school
did not occur.
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Pa. C.S. Section 7508(a)(3)(1), is that the
Defendant pay the costs of prosecution, and a
fine of $5,000.00, and that he undergo
imprisonment in a state correctional
institution for a period of not less than one
year nor more than three years, with credit to
be given for ten days previously served.
To the extent that this sentence is in
the mitigated range under the guidelines, it
is because of the Defendant's young age, his
lack of any prior criminal record, his history
of attempts at self-improvement through high
school employment and college, the
availability of family support, and the
Court's belief that years of prison in
addition to those imposed herein would not
have the desired effect of enhancing the
likelihood of rehabilitation.
The state sentence imposed herein shall
be served at a state correctional institution,
but the Defendant shall remain at the
Cumberland County Prison pending further Order
of Court. Bail is revoked in this matter so
that the Defendant may commence service of the
sentence.~°
The basis of the Commonwealth's appeal, as expressed in its
statement of reasons complained of on appeal, is that "[t]he
defendant's sentence was illegal in the sense that it does not
conform with the mandatory sentencing provisions of 18 Pa. C.S.A.
S7508(a)(3)(iii)~ and the Controlled Substance, Drug, Device and
~0 Order of Court, January 3, 1995.
~ It is believed that the Commonwealth meant to cite Section
7508(a)(3)(ii) of the Crimes COde (mandatory sentence of three
years in case of possession of cocaine with intent to deliver,
where quantity involved is at least ten grams but less than one
hundred grams). Section 7508(a)(3)(iii) (mandatory sentence of
four years where quantity involved is one hundred grams or more)
would not arguably be applicable to the present case.
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Cosmetic Act, 35 P.S. 780-113(a)(30)."~2 More specifically, it is
the Commonwealth's position that the Court erred in finding the
weight of cocaine possessed with intent to deliver by Defendant to
have been between two and ten grams, as opposed to between ten and
one hundred grams, resulting in a mandatory minimum sentence of one
year, as opposed to a mandatory minimum sentence of three years.~3
At the sentencing proceeding, neither the Commonwealth nor the
Defendant presented evidence on the mandatory sentence issue in
addition to that contained in the trial record.TM Briefly stated,
the evidence at trial pertinent to the issue of the proven weight
of cocaine possessed by Defendant with intent to deliver included
the following:
On Friday, January 14, 1994, Defendant, who had just turned
~2 Concise Statement of Matters Complained of on Appeal,
paragraph 1.
~3 Concise Statement of Matters Complained of on Appeal,
paragraph 1; N.T. 6, Sentencing Proceeding, January 3, 1995.
The Commonwealth has not appealed the discretionary aspects
of the sentence.
~4 By agreement of counsel, the trial record was incorporated
into the sentencing proceeding. N.T. 3-4, Sentencing Proceeding,
January 3, 1995. The Commonwealth introduced a laboratory report
respecting drugs seized from Defendant (Commonwealth's Exhibit 1),
which had been an exhibit at trial (Commonwealth's Exhibit 3).
N.T. 6-7, Sentencing Proceeding, January 3, 1995. Defendant
introduced a letter from counsel in support of Defendant's position
on the mandatory sentencing issue, inter alia (Defendant's Exhibit
1). N.T. 3, Sentencing Proceeding, January 3, 1995. The
presentence investigation report was also made part of the record
(Court's Exhibit 1). N.T. 5, Sentencing Proceeding, January 3,
1995.
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eighteen, had in his possession a plastic bag containing twenty-one
small ziplock bags.~s From this bag, he took two of the smaller
bags, each containing two nuggets, and sent a man whom he had just
met into a Carlisle hotel in the hope that the man could sell them
for $80 to the man's friends.~6 The man went out the back door of
the hotel, went home, smoked the nuggets, called the police, and
turned Defendant in.~7 Defense counsel's characterization of
Defendant as "naive" would appear to be a slight understatement.~8
Police arrested Defendant as he sat in the man's car in front
of the hotel.~9 On his person, Defendant had the plastic bag and
also two film canisters.2° In the plastic bag were 19 nuggets,
individually packaged in small ziplock bags; the canisters
contained loose, unpackaged nuggets, one canister having thirty-six
nuggets and the other a hundred and two.2~ Defendant also had $216
in currency.22
The suspected drugs were sent to the state police laboratory
N.T. 32-34, 63, 85.
N.T. 84-85, 91, 103.
N.T. 51-56; 85-87.
N.T. 154.
N.T. 30-34.
N.T. 33-34.
N.T. 33-34.
N.T. 39.
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in Harrisburg.23 The weight of the unpackaged nuggets in one
canister totaled 12.5 grams; the weight of the unpackaged nuggets
in the other canister totaled 3.9 grams; the weight of the
individually packaged nuggets in the bag was estimated at 2.2
grams.24 The latter figure was only an approximation, because nine
of the nineteen nuggets were not actually weighed;2~ the ten which
were weighed totaled 1.26 grams.2~
The laboratory subjected to analysis, for the presence of
cocaine, far fewer nuggets than the number which would have
approached ten grams in weight.27 The testimony was unsatisfactory
for purposes of determining with any precision how many of the
items had been tested. In this regard, the following excerpts of
the testimony of the laboratory technician are representative:
Q And how many of these little things
[in one of the canisters] did you test?
A That, I don't know ....
Q Do you have that in your notes there?
A As to how many?
Q Little nuggets you tested.
N.T. 35, 61.
N.T. 63-64; Commonwealth's Exhibits 1, 3.
N.T. 68-69.
N.T. 69.
N.T. 63-71.
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A No, I do not.
Q Did you test less than half of them?
A Judging from the apparent number
there, I would say that that is a - that would
be a true statement.
Q So, you tested eighteen or less?
A Well, less than eighteen. The exact
number, I wouldn't -
Q Five?
A Again, I have no - would have no
knowledge.28
Q How much of [the contents of the
second canister] did you test?
A Again, I would not know how many of
the individual pieces I had sampled for that.29
When asked whether he might have tested three or four of the one
hundred and two nuggets in the second canister, he concluded, "I
would have no way of knowing."3°
With respect to the nineteen individually packaged nuggets in
the bag in Defendant's possession, it is possible to infer that ten
N.T. 69-70 (emphasis added).
N.T. 71 (emphasis added).
N.T. 71 (emphasis added). Defendant's guilt or innocence
did not, of course, depend upon the jury's determination of the
weight of the drug, and it was not the Commonwealth's burden at
trial to establish a basis for a determination as to weight.
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94-0013 CRIMINAL TERM
nuggets, having a total weight of 1.26 grams, were analyzed.3~ The
items which the laboratory did subject to analysis tested positive
for the presence of cocaine.32
In closing argument, on the issue of intent, the Commonwealth
emphasized the packaged-for-sale character of the ziplock items in
the bag in Defendant's possession:
Well, gee, I'm thinking here, if he possessed
it and it's crack cocaine and there's a lot of
it and it's packaged to sell in little tiny
separate glassine bags, little tiny separate
glassine bags - where do you buy these little
plastic bags? Does that look like it's ready
to sell to you all? Twenty bucks a throw will
get you high on some crack.TM
The jury returned verdicts of guilty of possession of cocaine
with intent to deliver34 and guilty of simple possession of
cocaine.~5 The jury was not, of course, requested to determine the
overall weight of the cocaine, nor was it asked for any
apportionment of the weights between the two verdicts.
N.T. 69.
Commonwealth's Exhibit 3.
N.T. 167.
N.T. 190-91. See Act of April 14, 1972, P.L. 233,
§13(a)(30), as amended, 35 P.S. ~780-113(a)(30).
~5 N.T. 191. See Act of April 14, 1972, P.L. 233, ~13(a)(16),
as amended, 35 P.S. ~780-113(a)(16). This verdict was considered
to have merged for sentencing purposes with the more serious
charge.
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Statement of Law
Section 7508(a)(3) of the Crimes Code provides as follows:
A person who is convicted of violating
section [13(a)(30)] of The Controlled
Substance, Drug, Device and Cosmetic Act where
the controlled substance is coca leaves or is
any salt, compound, derivative or preparation
of coca leaves or is any salt, compound,
derivative or preparation which is chemically
equivalent or identical with any of these
substances or is any mixture containing any of
these substances except decocainized coca
leaves or extracts of coca leaves which
(extracts) do not contain cocaine or ecgonine
shall, upon conviction, be sentenced to a
mandatory minimum term of imprisonment and a
fine as set forth in this subsection:
(i) when the aggregate weight
of the compound or mixture
containing the substance involved is
at least 2.0 grams and less than ten
grams; one year in prison and a fine
of $5,000 or such larger amount as
is sufficient to exhaust the assets
utilized in and the proceeds from
the illegal activity; however, if at
the time of sentencing the defendant
has been convicted of another drug
trafficking offense: three years in
prison and $10,000 or such larger
amount as is ~ufficient to exhaust
the assets utilized in and the
proceeds from the illegal activity;
(ii) when the aggregate weight
of the compound or mixture
containing the substance involved is
at least ten grams and less than 100
grams; three years in prison and a
fine of $15,000 or such larger
amount as is sufficient to exhaust
the assets utilized in and the
proceeds from the illegal activity;
however, if at the time of
sentencing the defendant has been
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94-0013 CRIMINAL TERM
convicted of another drug
trafficking offense: five years in
prison and $30,000 or such larger
amount as is sufficient to exhaust
the assets utilized in and the
proceeds from the illegal activity
36
Several principles with respect to application of these
mandatory sentencing provisions are of importance herein. First,
a court is not free to disregard the provisions. "There shall be
no authority in any court to impose on an offender to which this
section is applicable a lesser sentence than provided for herein or
to place the of fender on probation, parole, work release or
prerelease or to suspend sentence...37
Second, a determination as to the applicability of a given
mandatory sentencing provision is to be made by the court at the
time of sentence.TM Third, the applicability of a given mandatory
sentencing provision must be proven by a preponderance of the
evidence.TM Fourth, a court "may not reassess the facts upon which
it previously relied to establish guilt" in determining the
36 Act of March 25, 1988, P.L. 262, §13, as amended, 18 Pa.
C.S. ~7508(a)(3)(i), (ii) (1994 Supp.).
37 Act of March 25, 1988, P.L. 262, ~13, as amended, 18 Pa.
C.S. ~7508(c) (1994 Supp.); see Commonwealth v. Carroll, Pa.
Super. , 651 A.2d 171 (1994).
38 Act of March 25, 1988, P.L. 262, ~13, as amended, 18 Pa.
C.S. ~7508(b) (1994 Supp.).
39 Act of March 25, 1988, P.L. 262, ~13, as amended, 18 Pa.
C.S. ~7508(b) (1994 Supp.).
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94-0013 CRIMINAL TERM
applicability of a mandatory sentence provision.4°
Fifth, the weight of a mixture containing cocaine, as opposed
to the weight of pure cocaine, is the proper weight to be
considered in applying a mandatory sentencing provision based on
weight.¢~ Finally, although a substance may be tested on the basis
of a portion thereof,~2 this Court has been wary of imposing a
severe mandatory sentence based upon a substance's weight, where
discrete items of alleged drugs are involved, the weight of the
items analyzed has been substantially below the prescribed weight
under the mandatory sentencing provision, and little burden would
have been involved in the Commonwealth's acquisition of an analysis
of the prescribed amount for purposes of sentence. Commonwealth v.
Coleman, No. 94-0340 Criminal Term (February 15, 1995) (Cumberland
Co.) (Bayley, J.).
In summary, "before imposing a mandatory minimum sentence, a
sentencing court must determine whether the offense for which the
defendant was convicted falls within the parameters of the
sentencing scheme. This requires a separate determination by the
sentencing court." Commonwealth v. Carroll, Pa. Super. ,
4o Commonwealth v. Carroll, Pa. Super. , 651A.2d 171,
173 (1994); see Commonwealth v. Mayes, Pa. Super. , 647 A.2d
212 (1994).
4~ Commonwealth v. Brown, 408 Pa. Super. 246, 596 A.2d 840
(1991), appeal denied, 532 Pa. 660, 616 A.2d 982 (1992).
~ Commonwealth v. Perez, 397 Pa. Super. 574, 580 A.2d 781
(1990).
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651 A.2d 171, 173 (1994). Where the evidence at trial is not
conclusive on the issue of the amount of a drug possessed with
intent to deliver, the Court's obligation to carefully review the
evidence is "not merely proper; it [is] mandated by statute." Id.
at __., 651 A.2d at 174. On appeal, the decision of the sentencing
court will be reviewed on the basis of whether a determinative
finding is supported by the evidence. Id. at__, 651A.2d at 173.
Application of Law to Facts
In the present case, a number of factors led to the Court's
finding that the amount of cocaine shown by a preponderance of the
evidence to have been possessed with intent to deliver was between
two and ten grams. First, of the substance possessed by Defendant,
a total of only about two grams was packaged for sale. (In
assessing a weight of at least two grams to these items, the Court
has given the Commonwealth the benefit of the doubt by accepting
the estimate of cocaine in this amount offered by its expert,
notwithstanding that only 1.26 grams were actually weighed and
notwithstanding that only ten of nineteen packets were tested.)
Second, less than half a gram was actually offered for sale by
Defendant.
Third, the items of alleged contraband were in discrete forms,
as opposed to a mixture, the weight of the items tested was a small
fraction of the ten-gram requisite for application of the mandatory
sentencing provision advocated by the Commonwealth, and little
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94-0013 CRIMINAL TERM
burden would have been involved in securing an analysis of an
amount comporting with the statutory figure for purposes of
sentencing.
Fourth, the testimony was wholly inadequate in terms of
amounts sampled by the laboratory to provide a basis for the Court
to accept as reasonable a deduction that the actual weight of
cocaine was ten grams or more.
Finally, the Court's finding that the Commonwealth succeeded
in proving by a preponderance of the evidence that Defendant
possessed at least two grams of cocaine with intent to deliver, but
not ten or more, was not inconsistent with the jury's verdicts of
guilty of possession with intent to deliver and guilty of simple
possession.
For these reasons, it is believed that the Court's factual
determination as to the weight of cocaine shown to have been
possessed by Defendant with intent to deliver was supported by the
evidence. It is further believed that the imposition of a one-to-
three year state prison sentence upon this young Defendant with no
prior record more than adequately served the punitive, deterrent
and rehabilitative interests of justice.
Jonathan R. Birbeck, Esq.
Senior Assistant District Attorney
Ellen K. Barry, Esq.
First Assistant Public Defender
13