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COMMONWEALTH v. MYERS (03/27/73)

decided: March 27, 1973.

COMMONWEALTH
v.
MYERS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Dauphin County, No. 492 of 1972, in case of Commonwealth of Pennsylvania v. Zootie Myers.

COUNSEL

James H. Rowland, Jr., for appellant.

Marion E. MacIntyre, Deputy District Attorney, and LeRoy S. Zimmerman, District Attorney for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Watkins, J. Wright, P. J., would affirm the judgment of the court below.

Author: Watkins

[ 225 Pa. Super. Page 260]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Dauphin County, Criminal Division, sentencing the appellant, Zootie Myers, as a third offender to a life sentence under The Drug, Device and Cosmetic Act, Act of 1961, September 26, P. L. 1664, § 20, 35 P.S. § 780-20(d), as amended.

[ 225 Pa. Super. Page 261]

The appellant was convicted on February, 1972, on an indictment which recited that the defendant was being tried as a third offender and the penalty to be requested was a life sentence if convicted. The defendant was found guilty after a trial by jury and on April 11, 1972, was sentenced to life imprisonment.

The Drug, Device and Cosmetic Act, supra, sets forth offenses and permissible sentences as follows:

§ 780-20

"(c) Any person who possesses any narcotic drugs in violation of the provisions of this act shall be guilty of a felony, and upon conviction thereof, shall be sentenced, as follows: For a first offense to pay a fine not exceeding two thousand dollars ($2,000.00) and to undergo imprisonment by separate or solitary confinement at labor of not less than two (2) years and not exceeding five (5) years; for a second offense, or in case of a first conviction of violation subject to the provisions of this subsection, the offender shall previously have been convicted of any violation of the laws of the United States or of any other state, territory or district, relating to narcotics drugs, and said violation would have been a violation of the provisions of the law to which this subsection is applicable, had it occurred in this Commonwealth, to pay a fine not exceeding five thousand dollars ($5,000.00) and to undergo imprisonment by separate or solitary confinement at labor of not less than five (5) years and not exceeding ten (10) years, and for a third or subsequent offense, or if the offender shall previously have been convicted two or more times in the aggregate of any violation of the law of the United States or of any other state, territory or district, relating to narcotic drugs, and said violation would have been a violation of the provisions of this act relating to sale or possession of narcotics, had it occurred in this Commonwealth, to pay a fine not exceeding seven thousand five hundred dollars ($7,500.00) and to

[ 225 Pa. Super. Page 262]

    undergo an imprisonment by separate or solitary confinement at labor of not less than ten (10) years and ...


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