Com. v. Myers

• Decision Date: 11 June 1996
• Citation: 452 Pa.Super. 299,681 A.2d 1348
• Parties: COMMONWEALTH of Pennsylvania v. Dean L. MYERS, Sr., Appellant. COMMONWEALTH of Pennsylvania, Appellant v. Deborah Ann MYERS.
• Court: Pennsylvania Superior Court

Page 1348

681 A.2d 1348

452 Pa.Super. 299

COMMONWEALTH of Pennsylvania v. Dean L. MYERS, Sr., Appellant.

COMMONWEALTH of Pennsylvania, Appellant v. Deborah Ann MYERS.

Superior Court of Pennsylvania.

Argued June 11, 1996.

Filed July 22, 1996.

Darrell C. Dethlefs, Camp Hill, for Dean L. Myers, Sr.

Michael D. Rentschler, Camp Hill, for Deborah A. Myers.

Mary B. Seiverling, Deputy Attorney General, Harrisburg, for the Com.

Before TAMILIA, JOHNSON and MONTEMURO, ^* JJ.

TAMILIA, Judge.

These consolidated appeals arise from the drug trafficking convictions of Dean and Deborah Myers, husband and wife. Following a joint jury trial, Dean Myers was convicted of four counts of possession with intent to deliver a controlled substance ¹ and one count of criminal conspiracy, ² and Deborah Myers was convicted of one count of possession with intent to deliver a controlled substance and one count of criminal conspiracy. The convictions arose from the same set of facts, which are set forth by the trial court as follows.

The evidence at trial indicated that, on March 16, 1994, agents from the Tri-County Drug Task Force and agents from the Pennsylvania Office of the Attorney General were in the process of investigating a marijuana trafficking operation. In the course of their investigation, the officers received notice that the [Myerses, subjects] of the drug investigation, [were] proceeding toward 702 State Street in the borough of Lemoyne. The police proceeded to 702 State Street and observed the [Myerses] as they arrived in a a Budget Rent-A-Van.

After the [Myerses'] van stopped, the police approached, identified themselves, and explained that they were investigating the [Myerses'] involvement in the transportation of marijuana from California to central Pennsylvania. In addition, the police administered Miranda warnings. After receiving these warnings, Dean and Deborah Myers both indicated that the van contained marijuana. [Dean Myers] also informed the police that he had been conducting his own investigation and was trying to identify major marijuana traffickers who were supplying marijuana to his son. [Dean Myers] further stated that he wished to relay additional information, but requested that he leave his residence at 702 State Street because he feared being overheard by other occupants of the home.

Pursuant to this request, the police transported [Dean Myers] to the Lemoyne police department, and Deborah Myers followed in the Budget Rent-A-Van. At the police station, the investigating officers conducted a joint interview of Dean and Deborah Myers. During this interview, Dean Myers indicated that, on the night in question, he had transported approximately thirty-three pounds of marijuana from California to central Pennsylvania. Myers also indicated that he had transferred approximately twenty pounds of the total thirty-three pounds to a nearby storage facility. In addition to these admissions, [Dean Myers] indicated that, prior to his apprehension for this incident, he had travelled to California and had returned to central Pennsylvania with various quantities of marijuana, ranging in weight from 20.5 to 33.25 pounds. Finally, during the course of this interview, [Dean Myers] consented to a police search of the Budget Rent-A-Van.

As a result of the receipt of this information, Officer Diller, an agent from the Office of the Attorney General, obtained a search warrant to recover the marijuana allegedly located at the storage facility. Upon execution of the warrant, officers discovered a large, black storage container smelling strongly of marijuana, but otherwise empty. The officers were not successful in recovering any quantity of the drug.

While Agent Diller was executing the warrant for the storage facility, Officer Troutner, another agent from the Office of the Attorney General, conducted a search of the Budget Rent-A-Van. The search of the van revealed what appeared to be several wrapped Christmas gifts. In the course of the search, Mrs. Myers, who was present throughout the search, identified a large, gift-wrapped box and indicated that the box contained marijuana. When the investigating officers opened the package, they discovered vegetable material surrounded with contact paper. Under the contact paper were layers of black pepper and baking soda. Preliminary field testing on the vegetable substance revealed the package contained marijuana.

In addition to the testing performed at the scene of the Budget Rent-A-Van search, the vegetable material was subjected to testing at the Pennsylvania State Police Lab in Harrisburg [which confirmed that the vegetable substance was marijuana].

(Slip Ops. [in both cases], Hoffer, J., 10/2/95, pp. 1-4; citations and footnote omitted.)

At this point, the facts of the cases diverge and we return to the trial court's recitation as relevant to Dean and Deborah Myers, separately:

In light of the previously mentioned scientific evidence and self-inculpatory statements, [Dean Myers] was charged with four counts of possession with the intent to deliver a Schedule I controlled substance. Count A-I arose from the March 16 incident and involved the marijuana found in the Budget Rent-A-Van and the marijuana placed in the storage shed. Counts A-II, A-III, and A-IV arose from [Dean Myers's] inculpatory statements, elicited during the interview at the Lemoyne Police Department, indicating that, on at least three previous occasions, he had travelled to California and had returned to central Pennsylvania with various quantities of marijuana. Finally, [Dean Myers] was charged with one count of criminal conspiracy.

On March 27, 1995, a jury trial commenced in this matter, and the Commonwealth filed a notice of mandatory sentence with regard to Counts A-I through A-IV. On March 28, 1995, the jury found [Dean Myers] guilty on all counts, and on April 24, 1995, [he] appeared for sentencing. With regard to Count A-I, this Court found that, on March 16, 1995, [Dean Myers] transported a quantity in excess of ten pounds of marijuana into Pennsylvania. Having found that the quantity of contraband in question exceeded ten pounds, this Court, in accordance with the mandatory sentencing procedures set forth in 18 Pa.C.S.A. § 7508(a)(1)(ii), sentenced [Dean Myers] to imprisonment in the State Correctional Institution for a period of not less than three years nor more than five years. With regard to Counts A-II through A-IV, this Court again imposed the mandatory minimum, and again sentenced [Dean Myers] to a period of incarceration of not less than three years nor more than five years. The sentencing order indicates that these sentences were to run concurrently.

(Slip Op. at 4-6; citations omitted.)

As to Deborah Myers, the trial court stated as follows:

Deborah Myers was charged with one count of possession with the intent to deliver a controlled substance and one count of criminal conspiracy. On March 27, 1995, a jury trial commenced in this matter, and the Commonwealth filed a notice of mandatory sentence with regard to the possession with intent to deliver charge. On March 28, 1995, the jury found [Deborah Myers] guilty on both counts, and on June 20, 1995, [she] appeared for sentencing.

With regard to the possession count, this Court sentenced [Deborah Myers] to undergo imprisonment in a State Correctional Institution for a period of not less than one year nor more than five years. This sentence constitutes the mandatory minimum with regard to the possession of two to ten pounds of marijuana.

(Slip Op. at 5; citations omitted.) Thus, although a similar factual predicate underlies the convictions in both cases, Dean Myers was sentenced to the mandatory minimum for possession of more than ten pounds of marijuana, while Deborah Myers was sentenced to the mandatory minimum for possession of two to ten pounds of marijuana.

On appeal, Dean Myers claims the record does not support the trial court's conclusion that he possessed in excess of ten pounds of marijuana. As to Deborah Myers, the Commonwealth appeals on the basis that the sentence was illegal because the record clearly demonstrated that Deborah Myers possessed at least ten pounds of marijuana and there was no evidence to support the sentencing court's finding that she possessed only two to ten pounds.

Since both appeals allege error in sentencing, we note initially that the Myerses were sentenced pursuant to the mandatory minimum sentence provisions of 18 Pa.C.S. § 7508, which provides in pertinent part:

§ 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 April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device 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:

(i) when the amount of marijuana involved is at least two pounds, but less than ten pounds, or at least ten live plants but less than 21 live plants; 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: two years in prison and a fine of $10,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity;

(ii) when the amount of marijuana involved is at least ten pounds, but less than 50 pounds, or at least 21 live plants but less than 51 live plants; 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...