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decided: September 15, 1972.


Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1970, No. 1847, in case of Commonwealth of Pennsylvania v. Donald Simpson.


Francis S. Wright, Assistant Defender, with him John L. Rolfe, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Thomas M. Wochok, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 222 Pa. Super. Page 297]

Appealing from his conviction for possession of narcotic drugs, defendant raises two issues: the trial

[ 222 Pa. Super. Page 298]

    court's refusal to grant defendant a requested continuance, and the applicability of The Controlled Substance, Drug, Device and Cosmetic Act of 1972, 35 P.S. §§ 780-101 to -143 (Pa. Leg. Serv. 165 (1972)) (hereinafter the "Controlled Substance Act"). Both issues require an examination of the facts surrounding defendant's conviction.

He was arrested on November 7, 1970, when police officers saw him attempting to discard a packet of heroin. Following a preliminary hearing and indictment, arraignment was listed for December 28, 1970, but was continued until January 12, 1971, then to April 22, and finally to May 5, 1971. On the latter date defendant's case was scheduled to be tried on June 3, 1971. However, when the case was called, defendant, who had been represented by a voluntary defender since November 1970, requested more time to secure private counsel and accordingly proceedings were continued again until July 8, 1971. On that date defendant moved for another continuance, stating that his family needed more time to finish paying the fee of a privately retained attorney. The motion was denied and the denial forms the basis for one of defendant's allegations of error.

Defendant, represented by a voluntary defender, was then tried and convicted of narcotics-possession on July 8, 1971. His sentence under The Drug, Device and Cosmetic Act of 1961, 35 P.S. §§ 780-1 to -31, was 6 months to 5 years. An appeal to this Court was filed on August 9, 1971, but we remanded for the filing of post-trial motions which were argued and denied, following which defendant was resentenced to the same term of imprisonment. The present appeal was then filed on December 27, 1971.

During the pendency of the appeal the Controlled Substance Act, supra, prescribing lesser penalties for

[ 222 Pa. Super. Page 299]

    narcotics-possession, was enacted, with an effective date of June 14, 1972. In his second allegation of error defendant claims the benefit of the new act's sentencing provisions.

Turning first to the trial court's refusal to grant the additional continuance, we find that there was no error. Due to the granting of the prior continuances outlined above, defendant had from November 7, 1970 (the date of his arrest), until July 8, 1971 (the date of trial), to secure private counsel. Even after defendant was first called to trial on June 3, he was given, at his request, a period of more than a month to obtain an attorney of his choice. At the end of this period defendant did not indicate how much additional time would be needed to raise a fee for a private counsel, nor was there any showing that the fee would, in fact, ever be raised. Under these circumstances, and in view of the absence of complex issues in the case against him, we believe that defendant was afforded sufficient time to secure a private attorney in lieu of the public defender, and the refusal of the trial court to grant a further continuance did not deprive defendant of his constitutional rights of due process and assistance of counsel. A continuance is a matter within the sound discretion of the trial court. Commonwealth v. Richardson, 392 Pa. 528, 140 A.2d 828 (1958), and no abuse of that discretion has been shown in the present case.

In the strikingly similar case of United States ex rel. Carey v. Rundle, 409 F.2d 1210 (3d Cir. 1969), the court, in balancing the desirability of permitting a defendant additional time to obtain private counsel of his own choice against the equally desirable public need for efficient and effective administration of justice, concluded that a trial judge had not abused his discretion in refusing to allow a defendant additional time to secure the services of a private attorney where

[ 222 Pa. Super. Page 300]

    the defendant had already been granted a 1-month continuance for that purpose. The court's conclusion was based upon the reasoning, applicable to the present case, that although a defendant has an absolute right to counsel, he has no absolute right to a particular counsel and so a request for additional time to secure a particular counsel may, in the court's discretion, be denied.

Defendant's second contention on this appeal is that he should receive the benefit of the more lenient sentencing provisions of the recently enacted Controlled Substance Act, supra. As mentioned above, this act was passed during the pendency of defendant's appeal. It provides in § 780-113(b) that a person convicted for the first time under the act for knowingly or intentionally possessing heroin shall be sentenced to imprisonment not exceeding 1 year or to pay a fine not exceeding $5,000, or both. The actual sentence given defendant under The Drug, Device and Cosmetic Act, supra, was 6 months to 5 years.

The issue to be resolved is whether or not the newer Controlled Substance Act was intended to affect defendant's sentence. To resolve this issue we must construe the words "similar" and "final" in § 780-139(a) of the act, which provides: "In any case not yet final if the offense is similar to one set out in this act, the penalties under this act apply if they are less than those under prior law."

[ 222 Pa. Super. Page 301]

Turning first to the similarity-of-offense issue, we must determine whether or not the offense of which defendant was convicted is similar to one set out in the Controlled Substance Act. In construing the word "similar" in the context of comparing two laws, we have noted that the laws need not be identical to be similar; it is sufficient that the laws be nearly corresponding or have a general likeness. Commonwealth Page 301} v. Shaffer, 175 Pa. Superior Ct. 100, 103 A.2d 430, allocatur refused, 175 Pa. Superior Ct. xxv (1954); cf. Bonsall's Estate, 288 Pa. 39, 135 A. 724 (1927).

Applying these definitions of the word "similar" to the case at hand, we conclude that the offense of which defendant was convicted is similar to one set out in the Controlled Substance Act. Specifically, defendant was convicted under § 780-4(q) of The Drug, Device and Cosmetic Act, which prohibits the possession of any dangerous or narcotic drug, and § 780-20(c), which prescribes the penalty therefor. The offense delineated in § 780-113(a)(16) of the Controlled Substance Act is "[k]nowingly or intentionally possessing a controlled . . . substance . . . ." Heroin being a "controlled substance," § 780-104(1)(ii)(10), the offenses are identical with respect to defendant's possession of heroin except that the Controlled Substance Act expressly requires proof of guilty knowledge or intent. However, while under some circumstances this difference might dictate different results under the two acts,*fn1 we are satisfied that at least with respect to the present case the difference is not significant since under either act the defendant must be shown to have voluntarily intended the possessory act of which he stands accused,*fn2

[ 222 Pa. Super. Page 302]

    and this was the only type of knowledge or intention which was in issue at defendant's trial.*fn3 Additionally, the evidence believed by the trial court*fn4 as trier of fact was sufficient to support defendant's conviction under either act, with or without the requirement that the possession be knowing or intentional. Under these circumstances we have no difficulty in concluding that defendant's offense is "similar" to, "nearly corresponding"

[ 222 Pa. Super. Page 303]

    to, or has a "general likeness" with, the offense set out in § 780-113(a)(16) of the Controlled Substance Act.

The Controlled Substance Act creates an additional crime called possession with intent to manufacture or deliver. The Commonwealth argues that it cannot be determined with certainty that the crime here involved is similar to simple possession, or possession with intent to manufacture or deliver. However, the Commonwealth admits that no evidence was produced to show intent to manufacture or deliver and we are satisfied that the offense of which appellant was convicted is similar to simple possession proscribed in § 780-113(a)(16), rather than possession with intent to manufacture or deliver.

The final determination we must make is whether or not defendant's case was "final" within the meaning of § 780-139(a) of the Controlled Substance Act. We find that it was not. An apropos definition of "final" is provided in Commonwealth v. Little, 432 Pa. 256, 248 A.2d 32 (1968), which involved the application of the Miranda*fn5 proscription against tacit admissions to a case on a nunc pro tunc direct appeal at the time Miranda was decided. The Court concluded that Miranda, though not retroactive, was nevertheless applicable since, at the time it was announced, the case in issue was not yet finalized. The Court adopted the rule on finality enunciated in Linkletter v. Walker, 381 U.S. 618 (1965): A judgment is final when the availability of appeal is exhausted and the time for petition for certiorari has elapsed.

Thus, this case on direct appeal was not final when the Controlled Substance Act was passed. We conclude, therefore, that since defendant's case was not final and since his offense is similar to one set out in the Controlled

[ 222 Pa. Super. Page 304]

Substance Act, he is entitled, pursuant to § 780-139(a) of that act, to the benefit of the acts reduction in penalties.

Case remanded for resentencing in accordance with this opinion.


Case remanded for resentencing.

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