Com. v. Bell
| Decision Date | 13 September 1994 |
| Citation | 645 A.2d 211,537 Pa. 558 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Stuart A. BELL, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Charles A. TISCHLER, Appellee. COMMONWEALTH of Pennsylvania, Appellee, v. Michael J. LITZENBERGER, Appellant. |
| Court | Pennsylvania Supreme Court |
Robert E. Colville, Dist. Atty., Claire C. Capristo, Deputy Dist. Atty., Kemal A. Mericli, James R. Gilmore, Asst. Dist. Attys., for Com. in No. 36.
Mary Benefield Seiverling, Sr. Deputy Atty. Gen., for amicus curiae in Nos. 35 and 36.
Joseph P. Green, Jr., Duffy & Green, West Chester, for Litzenberger in No. 22.
John Packel, Asst. Public Defender, for amicus curiae in No. 22.
Stanton D. Levenson, Pittsburgh, for appellee in No. 35.
Paul D. Boas, Pittsburgh, for appellee in No. 36.
Stuart Suss, Asst. Dist. Atty., Nicholas J. Casenta, Jr., West Chester, for appellee in No. 22.
Peter Rosalsky, Philadelphia, for amicus curiae, Defender Ass'n of Philadelphia in Nos. 35 and 36.
Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY and MONTEMURO, JJ.
These consolidated appeals challenge the constitutionality of the mandatory minimum sentencing statute for marijuana trafficking set forth at 18 Pa.C.S. § 7508(a)(1)(ii) and (iii). Because we find that this provision can be interpreted consistently with other statutes in such a way as to provide a maximum sentence for the offenses, we reject the notion that it is impermissibly vague and violates the due process clause of Article 1, Section 9 of the Pennsylvania Constitution. The different factual and procedural backgrounds of these cases shall be set forth separately.
On March 21, 1990, postal authorities in Tucson, Arizona concluded that a package addressed to Michael Litzenberger and delivered to the Post Office for express delivery met their informal profile of packages containing illicit drugs. In particular, the package was large (thirty-four pounds), heavily taped, and the return address contained a fictitious company name and address. The postal authorities therefore detained the package and obtained a narcotics dog. Although the dog did not "alert" to the package, he "showed interest in it." The postal authorities continued to treat the package as if it might contain contraband and delayed its delivery for a total of forty-four hours.
During the delay, the package was re-routed to Camden, New Jersey, and authorities there were notified of the package's suspicious nature. While the package was en route between Tucson and Camden, it was somehow ripped and the tape had become sufficiently loose to allow the odor of marijuana to escape. The postal inspector in Camden noticed the odor and brought in another narcotics dog who "alerted" to the package. After a controlled delivery of the package, Litzenberger was arrested. A forensic scientist later tested the contents of the package and determined that it contained 25.7 pounds of marijuana.
Following a non-jury trial, Litzenberger was convicted of possession, 1 possession with intent to deliver marijuana, 2 and conspiracy 3. He was sentenced to three to six years imprisonment on the possession with intent to deliver conviction pursuant to 18 Pa.C.S. § 7508(a)(1)(ii) and was fined $15,000. He was also sentenced to a concurrent term of imprisonment of eleven and one-half to twenty-three months for the criminal conspiracy conviction. Litzenberger filed a Motion for Reconsideration of Sentence, which was denied by the trial court. Litzenberger subsequently appealed to the Superior Court, contending that the trial court failed to suppress evidence which was gained by an unlawful search and seizure; that the Commonwealth failed to comply with the notice provision in § 7508(b); and that § 7508 was unconstitutional as applied to marijuana cases where the total weight of the substance is less than 1,000 pounds. The Superior Court affirmed his convictions, finding no merit to the suppression issue, and holding that his sentence, pursuant to the mandatory minimum set forth in § 7508, was proper 423 Pa.Super. 635, 616 A.2d 716. We granted allocatur only as to the sentencing issues.
and Commonwealth v. Tischler
On September 11, 1991, following a bench trial, Stuart Bell and Charles Tischler were convicted of possession of 116 pounds of marijuana with intent to deliver. 4 The Commonwealth gave timely notice of its "intention to proceed" under the mandatory sentencing provisions established by 18 Pa.C.S. § 7508. Bell and Tischler thereafter filed Motions to Bar Imposition of Mandatory Sentence, which were granted by the Court of Common Pleas of Allegheny County. 5 The court found that although the mandatory sentencing provision set forth in § 7508(a)(1)(iii) was applicable to the cases, the provision was in direct contradiction to the sentencing scheme long established by the legislature. It further held that 18 Pa.C.S. § 7508(a)(1)(iii), in requiring the imposition of a mandatory minimum sentence without an explicit limitation on the maximum sentence, is void for vagueness and denies the defendants due process of the law, which is guaranteed by Article 1, Section 9 of the Pennsylvania Constitution and the Fifth and Fourteenth Amendments of the Constitution of the United States.
After the denial of post-trial motions, the defendants proceeded to sentencing on November 1, 1991. The court granted reconsideration of the previous ruling, but again decided not to apply the mandatory minimum sentence of § 7508(a)(1)(iii). The court then sentenced each defendant to a term of imprisonment of one to two years, with probation of five years and a fine of $50,000, plus costs. The Commonwealth filed a timely Motion to Modify Sentence, which was denied. We have jurisdiction over the matter pursuant to 42 Pa.C.S. § 722(7), which provides that our Court has exclusive jurisdiction of appeals from final orders of the court of common pleas when that court holds a statute invalid as repugnant to the Constitution of the United States or the Pennsylvania Constitution.
Three statutes affect sentencing in cases involving illegal delivery and/or possession of marijuana with the intent to deliver. The provisions challenged as unconstitutional in the instant cases are 18 Pa.C.S. § 7508(a)(1)(ii) and (iii). Those sections provide in pertinent part as follows:
§ 7508. Drug trafficking sentencing and penalties
(a) General rule.--Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply:
(1) A person who is convicted of violating section 13(a)(14), (30), or (37) of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Devise and Cosmetic Act, where the controlled substance is marijuana shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection:
* * * * * *
(ii) upon the first conviction when the amount of marijuana involved is at least ten pounds, but less than 50 pounds: 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....
(iii) upon conviction when the amount of marijuana involved is at least 50 pounds: five years in prison and a fine of $50,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity.
18 Pa.C.S. § 7508(a)(1) (emphasis added). 6
Section 113(f)(2) of the Controlled Substance, Drug, Device and Cosmetic Act (hereinafter, "Drug Act") provides:
(f) Any person who violates clause (12), (14) or [clause] (30) of subsection (a) with respect to:
(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. 7
35 P.S. § 780-113(f)(2) (emphasis added).
The alleged inconsistency arises from the fact that § 7508(a)(1)(iii) sets the minimum sentence for the marijuana trafficking of over fifty pounds at five years, while Section 113(f)(2) provides that five years is the maximum sentence for that offense. This result is incompatible with section 9756(b) of the Sentencing Code, which provides as follows:
(b) Minimum sentence.--The court shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed. (emphasis supplied).
42 Pa.C.S. § 9756(b) (emphasis added).
Section 7508(a)(1)(ii) () is equally troublesome. Section 113(f)(2) of the Drug Act sets the maximum sentence for the offense at five years, which again results in the minimum sentence exceeding one-half of the maximum sentence.
Litzenberger 8, Bell, and Tischler (hereinafter collectively referred to as "Defendants"), along with the Defender Association of Philadelphia as amicus curiae, argue that § 7508(a)(1)(ii) and (iii) cannot be constitutionally applied because the ad hoc judicial creation of a maximum sentence makes the penalty unduly vague and unknowable. Defendants contend that due process, guaranteed by Article I, Section 9 of the Pennsylvania Constitution and the Fourteenth Amendment to the United States Constitution, precludes sentences without definite maximums.
The Attorney General as amicus curiae contends that the failure to provide a statutory maximum sentence does not raise constitutional concerns. 9 At the same time however, the Attorney General contends that a maximum sentence in...
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