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COMMONWEALTH v. PORTALATIN (11/16/72)

SUPERIOR COURT OF PENNSYLVANIA


decided: November 16, 1972.

COMMONWEALTH
v.
PORTALATIN, APPELLANT

Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1970, No. 412, in case of Commonwealth of Pennsylvania v. Virgilio Portalatin.

COUNSEL

Mary Bell Hammerman, for appellant.

Richard D. Steel and Milton M. Stein, Assistant District Attorneys, 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. Concurring and Dissenting Opinion by Hoffman, J. Spaulding and Packel, JJ., join in this concurring and dissenting opinion.

Author: Jacobs

[ 223 Pa. Super. Page 34]

This case presents the issue of whether the reduced penalty for simple possession of heroin under the recently

[ 223 Pa. Super. Page 35]

    enacted The Controlled Substance, Drug, Device and Cosmetic Act of 1972*fn1 is applicable to an offense committed prior to the effective date of the act, if nunc pro tunc motions in arrest of judgment and for a new trial were pending in the case after the effective date of the act. We hold that the penalty under the new act is applicable.

Defendant, on the evening of September 16, 1970, was observed by a police officer on a Philadelphia street in conversation with a juvenile male. The parties, who were standing close together with their hands held at the height of their waists, looked in the officer's direction. The officer glanced away; upon looking back, he saw a white object, later discovered to contain heroin, fall between the two individuals. As the officer approached, the subjects started to depart hurriedly. Upon this evidence, defendant was tried under The Drug, Device and Cosmetic Act of 1961*fn2 for possession of narcotics,*fn3 convicted in a non-jury proceeding, and sentenced on December 3, 1970, to 1 1/2 to 3 years imprisonment.*fn4 No post-trial motions were made.

In response to defendant's Post Conviction Hearing Act*fn5 petition, Judge Ethan Allen Doty of the court below found on March 28, 1972, that defendant had not been properly apprised of his attorney's appellate intentions and, on the authority of Commonwealth v. Wilson, 430 Pa. 1, 241 A.2d 760 (1968), granted him the right to file motions in arrest of judgment and for a new trial, nunc pro tunc. While these motions were pending, The Controlled Substance, Drug, Device and

[ 223 Pa. Super. Page 36]

Cosmetic Act of 1972 went into effect.*fn6 Subsequently, the motions were denied on their merits. From that denial, defendant has perfected a timely appeal to this Court under Pennsylvania Rule of Criminal Procedure 325.

We agree with the lower court's denial of the motions in arrest of judgment and for a new trial; neither insufficiency of the evidence nor inadequate representation at trial has been demonstrated. When used to test the sufficiency of the evidence, these motions must be predicated upon the assumption that the Commonwealth's evidence was correct; the prosecution is entitled to all reasonable inferences therefrom. Commonwealth v. Jackson, 187 Pa. Superior Ct. 2, 144 A.2d 249, adopting opinion in 13 Pa. D. & C.2d 218 (1958). In light of the close proximity of the defendant and his companion, the positioning of their hands immediately prior to the dropping of the heroin, and their common flight immediately afterward, the trial court was justified in finding joint or constructive possession of the drug.*fn7 The assertion that defendant's representation

[ 223 Pa. Super. Page 37]

    at trial was inadequate is likewise refuted by an examination of the record.

With regard to the applicability of the lesser penalties under The Controlled Substance, Drug, Device and Cosmetic Act of 1972, we conclude that the legislature's intent was to make applicable the act's sentencing provisions to cases pending, after the effective date of the legislation, on nunc pro tunc motions in arrest of judgment and for a new trial.

The statute 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."*fn8 In Commonwealth v. Simpson, 222 Pa. Superior Ct. 296, 294 A.2d 805 (1972), this Court held (1) that a case on timely direct appeal after the effective date of the act was not yet "final," (2) that the penalty for simple possession of heroin under the new act was obviously "less" than that under the old act,*fn9 and (3) that the offenses of simple possession of heroin were "similar" under both acts. Consequently, Commonwealth v. Simpson was remanded for resentencing.

This case differs from Simpson in only two material respects. The effect of both differences depends upon an interpretation of the word "final" in the new act.

[ 223 Pa. Super. Page 38]

First, this case was at an earlier procedural stage than was Simpson when the new act became arguably applicable to it. On the effective date of the act, the present case was pending on motions in arrest of judgment and for a new trial; Simpson was pending on appeal. The earlier stage of pendency in this case lends support to a view that it was not final.

Second, this case was pending on a nunc pro tunc basis when the new act became arguably applicable to it; Simpson was not. However, the fact that the definition of "final" adopted by Simpson does not distinguish between timely and nunc pro tunc pendencies, that the case from which that definition was taken specifically held nunc pro tunc pendencies to be not final, and that the legislature's use of the term "final" occurred after the decision in that case convinces us that cases awaiting disposition nunc pro tunc should not be deemed final.

The definition of "final" under the new act to be deduced from Simpson is: with the availability of appeal exhausted and the time for petition for certiorari elapsed. See Commonwealth v. Simpson, 222 Pa. Superior Ct. 296, 294 A.2d 805 (1972). No exception is made as to cases in which an appeal is available, but only by virtue of a nunc pro tunc order. Furthermore, the Pennsylvania Supreme Court case from which that definition was derived clearly rejected the view that any distinction in degree of finality existed between a nunc pro tunc pendency and a timely pendency. Commonwealth v. Little, 432 Pa. 256, 248 A.2d 32 (1968). In Little the Court held that the Miranda*fn10 proscription against the use in evidence of tacit admissions was applicable to a case on nunc pro tunc appeal at the time of the decision, on the ground that the case had not become final. Id. In addition, the Little

[ 223 Pa. Super. Page 39]

    case, with this resolution of the meaning of the word "final," had been on record for several years prior to the legislature's use of the word in The Controlled Substance, Drug, Device and Cosmetic Act of 1972. It is a rule of statutory construction that "[w]hen a term has a well-settled meaning within the law of a jurisdiction, it is presumed that the legislature intended to convey such meaning when using the word in a statute." Commonwealth v. 2101 Cooperative, Inc., 408 Pa. 24, 183 A.2d 325 (1962), adopting opinion in 27 Pa. D. & C.2d 405, 410 (1961).*fn11

For these reasons, we hold that the reduced penalty for simple possession of heroin under the recently enacted The Controlled Substance, Drug, Device and Cosmetic Act of 1972 is applicable to this offense committed prior to the effective date of the act, where nunc pro tunc motions in arrest of judgment and for a new trial were pending in the case after the effective date of the act.

In a case requiring correction of sentence, this Court has the option of either remanding for resentencing or amending the sentence directly. 17 P.S. ยง 192. Commonwealth v. Oxman, 173 Pa. Superior Ct. 482, 98 A.2d 424, allocatur refused, 173 Pa. Superior Ct. xxv (1953), cert. denied, 347 U.S. 918 (1954); Commonwealth ex rel. Graham v. Claudy, 171 Pa. Superior Ct. 562, 91 A.2d 389 (1952); Commonwealth v. Schultz, 170 Pa. Superior Ct. 504, 87 A.2d 69, allocatur refused,

[ 223 Pa. Super. Page 40170]

Pa. Superior Ct. xxvi, cert. denied, 344 U.S. 868 (1952).

The order of the court below, denying motions in arrest of judgment and for a new trial, is affirmed. Defendant's sentence on bill 412, October Term, 1970, is reduced to 1 year imprisonment and the offense is denominated a misdemeanor.

Disposition

Order affirmed.

Concurring and Dissenting Opinion by Hoffman, J.:

I agree with the majority that under The Controlled Substance, Drug, Device and Cosmetic Act of 1972, appellant is entitled to a correction of sentence. I believe, however, that the instant case should be remanded to the court below for resentencing.

While we have held that it is within our power to correct or modify an excessive sentence,*fn1 it would belie our responsibility to impart just and fair sentences to undertake that delicate function without having a full picture of the defendant before the reviewing court.*fn2

[ 223 Pa. Super. Page 41]

Although we may without difficulty ascertain the statutory limits prescribed for the particular offense, I am unable to conclude that we have that degree of information on the character and history of the offender to make a rational determination.

As our Supreme Court has said, "[E]very fact that will aid in passing a proper judgment is relevant and should be taken into consideration. And this includes not only the facts of the crime involved, but every bit of available trustworthy and pertinent information that will aid the court in determining the type of individual to be sentenced." (Emphasis added). Commonwealth v. Bell, 417 Pa. 291, 296, 208 A.2d 465 (1965). Although this Court may have the power to impose sentence, I believe that correction of sentence, under the circumstances of the instant case,*fn3 should be undertaken by the court below where all pertinent information relating to the defendant may be considered.

The case should be remanded to the court below for resentencing consistent with the new act.


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