Com. v. Murphy

• Decision Date: 14 June 1991
• Citation: 405 Pa.Super. 452,592 A.2d 750
• Parties: COMMONWEALTH of Pennsylvania v. Kenneth MURPHY, Appellant.
• Court: Pennsylvania Superior Court

Page 750

592 A.2d 750

405 Pa.Super. 452

COMMONWEALTH of Pennsylvania v. Kenneth MURPHY, Appellant.

Superior Court of Pennsylvania.

Submitted April 15, 1991.

Filed June 14, 1991.

Joseph J. Hylan, Asst. Public Defender, Norristown, for appellant.

Mary M. Killinger and J. Allen Daringer, Asst. Dist. Attys., Norristown, for Com.

Before ROWLEY, President Judge, and KELLY and BROSKY, JJ.

BROSKY, Judge:

Kenneth Murphy appeals from the judgment of sentence of the trial court following his bench trial convictions of possession of controlled substances, ¹ possession of controlled substances with the intent to deliver ² and conspiracy. ³ Appellant was sentenced to a term-of-imprisonment of eleven and one-half months to twenty-three months regarding the possession conviction; ⁴ twenty-one months to fifty-nine months regarding the possession with intent to deliver conviction; and, fifteen months to fifty-nine months regarding the conspiracy conviction. The aforementioned sentences were to run concurrent with one-another. The trial court stated,

Under the sentencing guidelines in 204 Pa.Code Section 303.9(c)(3), ... for the offense of possession of with intent to deliver ... [the minimum] mitigated range [would be] nine to fifteen months (9-15). [T]his court determined that the appropriate [minimum] sentence was nine to fifteen months[.] Furthermore, the record is clear that this Court would have imposed this [minimum] sentence but for the fact that under the law this Court was compelled to impose at least an additional twelve months to the first nine months pursuant to the enhancement provisions ... in 204 Pa.Code Section 303.9(c)(2). If this section is not mandatory, the matter should obviously be remanded to the sentencing court.

Trial Court Opinion, 1/18/91, at 3-4. The trial court's addition of twelve months to the minimum mitigated sentence range (of nine months) for possession with intent to deliver accounts for appellant's minimum sentence, for possession with intent to deliver, of twenty-one months.

Appellant claims on appeal that (1) the trial court erred in finding that it was compelled to apply the sentencing enhancement provisions found at 204 Pa.Code § 303.9(c)(2); and, (2) the trial court erred in applying the sentencing enhancement provision since the trial court did not require the Commonwealth to prove that appellant intended to be within one-thousand feet of a school. ⁵ We vacate appellant's sentences for possession of controlled substances and possession of controlled substances with intent to deliver and remand for resentencing. Our vacation of these sentences is in response to appellant's first issue and our detection of an illegal component regarding appellant's sentences for violations of the Controlled Substance Act, at 35 P.S. §§ 780-101 et seq. ⁶ Regardless of our vacation of appellant's aforementioned sentences we will address appellant's second claim since the trial court will be faced with this same issue on remand.

While there is a wealth of information emanating from Pennsylvania case law regarding the sentencing guidelines in general there is a paucity of comment specifically regarding 204 Pa.Code § 303.9(c)(2), which states:

(c) Violations of The Controlled Substance, Drug, Device and Cosmetic Act (35 Pa. §§ 780-101-780-144) are assigned guideline sentence ranges according to this subsection.

(2) When the court determines that the defendant either distributed a controlled substance to a person or persons under the age of 18 in violation of 35 P.S. § 780-114, or manufactured, delivered or possesses with intent to deliver a controlled substance within 1000 feet of a public or private elementary or secondary school, then at least 12 months and up to 36 months shall be added to the guideline ranges ... which would otherwise have been applicable.... [Emphasis added.]

Appellant is not denying that he was within one-thousand feet of a school when he possessed cocaine with intent to distribute. He is only alleging that the enhancement provision was inapplicable in the instant case.

The facts adduced at trial indicated that on March 30, 1989 Norristown, Pennsylvania police officers observed an automobile containing appellant and two other men. The three men exited the vehicle. The police officers observed two bags of cocaine in the rear passenger area of the vehicle. Appellant and the other two men were arrested. ⁷ A search of appellant revealed seven bags of cocaine (containing a total of 3.3 grams), a "Pagenet beeper", and $557.55 in United States currency. There was no evidence presented at trial that would have suggested that appellant intended to sell the cocaine to minors.

Appellant alleged at trial that on the day that he was arrested he left his automobile at a repair shop at 7:00 a.m. One of appellant's co-defendants arrived in his automobile and gave appellant a ride to a bar; the men purchased 3.3 grams of cocaine at the bar. Appellant testified that the men drove to another location and parked in an alley in order to administer repairs to the car. Co-defendant Omar Byrd testified that after driving a bit further the car overheated. Byrd stated that the car was then parked, the men left the car in order to walk to a nearby business establishment and were subsequently arrested.

First, we vacate appellant's sentence for possession of a controlled substance and remand for resentencing since the trial court imposed an illegal sentence. ⁸ The trial court should have merged for sentencing purposes the crimes of possession of controlled substances and possession with intent to deliver since both charges stemmed from the same act of possession. Commonwealth v. Logan, --- Pa.Super. ----, 590 A.2d 300 (1991); Commonwealth v. Johnston, 348 Pa.Super. 160, 501 A.2d 1119 (1985), affirmed at 515 Pa. 454, 530 A.2d 74 (1987).

Second, we vacate appellant's sentence for possession with intent to deliver and remand for resentencing in response to appellant's claim in issue number one since the trial court erred in finding that it was compelled, pursuant to the sentencing enhancement provision found at 204 Pa.Code § 303.9(c)(2), to add at least twelve additional months to appellant's minimum sentence for possession with intent to deliver. The trial court stated that it believed that the addition of at least twelve additional months to appellant's minimum sentence was mandatory.

The imposition of a proper sentence is a matter vested in the sound discretion of the trial court whose determination must be respected unless it involves a manifest abuse of discretion. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988); Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115 (1987). However, the trial court must exercise its discretion in accordance with the applicable provisions of the Sentencing Code, 42 Pa.C.S. §§ 9701 et seq. The Code provides, in pertinent part, that the trial court

shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant. The court shall also consider any guidelines for sentencing adopted by the Pennsylvania Commission of Sentencing.... In every case where the court imposes a sentence outside the sentencing guidelines ... the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines.

42 Pa.C.S. § 9721(b).

Our Supreme Court has stated that a sentencing court is not required to adopt the recommendations in the sentencing guidelines but it must at least consider them. Commonwealth v. Cornish, 403 Pa.Super. 492, 589 A.2d 718 (1991); See Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). The sentencing guidelines do not preclude judicial discretion. Commonwealth v. Septak, 359 Pa.Super. 375, 518 A.2d 1284 (1986). The deadly weapon enhancement sentencing guideline, at 204 Pa.Code § 303.4, contains language similar to that found in 204 Pa.Code § 303.9(c)(2), the guideline under consideration in the instant case. Both mandate that an additional minimum sentence of at least twelve months "shall be added" to a defendant's regular minimum sentence if the enhancement provision is triggered. In reference to the deadly weapon enhancement guideline provision, our Court stated in Commonwealth v. Cornish, supra,

The sentencing court may not disregard this section in determining the appropriate guideline sentencing ranges. See Commonwealth v. Septak, 359 Pa.Super. 375, 380, 518 A.2d 1284, 1286 (1986); Commonwealth v. Drumgoole, 341 Pa.Super. 468, 474, 491 A.2d 1352, 1355 (1985). [Footnote 4] It is imperative that the sentencing court determine the correct starting point in the guidelines before imposing sentence. [Citations omitted.]

[Footnote 4] Both Septak and Drumgoole construed the prior sentencing guidelines, which were declared unconstitutional in Commonwealth v. Sessoms, supra. The present guidelines were promulgated on February 22, 1988 (effective April 25, 1988). Section 303.4 of the present guidelines is substantially similar to § 303.4 of the prior guidelines.

Id. at ----, 589 A.2d at 720.

Hence, in the instant case the sentencing court only had to consider the sentencing enhancement provision found at 204 Pa.Code § 303.9(c)(2). The addition of the additional months to appellant's minimum sentence for possession with intent to deliver, pursuant to the enhancement provision, only provided the trial court with the correct starting point in the guidelines before the sentencing court imposed its sentence. Cornish, supra, Septak, supra, Drumgoole, supra. The sentencing court was not compelled to add at least an additional twelve months to appellant's sentence for possession with intent to deliver since it could have sentenced outside of the guidelines; a sentence outside...