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COMMONWEALTH v. SABATHNE (04/03/74)

decided: April 3, 1974.

COMMONWEALTH
v.
SABATHNE, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas of Dauphin County, Nos. 2506 and 2507 of 1972, in case of Commonwealth of Pennsylvania v. Jerry H. Sabathne.

COUNSEL

Richard D. Walker, Public Defender, for appellant.

James G. Morgan, Jr., and Marion E. MacIntyre, Deputy District Attorneys, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Concurring Opinion by Hoffman, J. Spaeth, J., joins in this opinion.

Author: Price

[ 227 Pa. Super. Page 332]

This is an appeal from the sentences imposed by the Court of Common Pleas, Criminal Division, of Dauphin County after the entry of pleas of guilty by the appellant to two separate counts of unlawful delivery of a controlled substance under the Controlled Substance, Drug, Device and Cosmetic Act, April 14, 1972, P. L. 233, No. 64, § 13 (35 P.S. § 780-100). Appellant, on June 13, 1973, was sentenced on each count to concurrent sentences of imprisonment for not less than two years nor more than five years.

On this direct appeal appellant contends that both counts merge into a single count and, therefore, the separate sentences are improper. We cannot agree, and, therefore, will affirm the judgment of sentence imposed by the lower court.

On June 9, 1972, appellant made two separate sales of methamphetamine tablets to the same agent for the Pennsylvania Bureau of Drug Control, the first of eight tablets for $2.00 and the second for one hundred

[ 227 Pa. Super. Page 333]

    tablets for $20.00. Both sales took place in the same locale, the first in the restroom of a bar in Steelton, the second outside the same bar. The first sale was accomplished by direct negotiation between appellant and the agent, the second by the intervention of a third person. The Commonwealth's testimony places these sales ten minutes apart; the appellant's own testimony places them forty-five minutes to one hour apart. Appellant contends that these facts establish only one criminal act, i.e., one sale and that the two counts and subsequent sentences are improper.

At the time of formal arraignment on January 25, 1973, while represented by private counsel, appellant entered a plea of guilty to both counts following a complete colloquy of record, including an explanation of the separate counts involved. At the time of trial on March 8, 1973, these pleas of guilty were reiterated by appellant, then represented by the Public Defender's Office of Dauphin County, after an additional complete colloquy, again including explanation of the separate counts. It is clear that the guilty pleas entered by the appellant were voluntarily, knowingly and understandingly entered on both counts, and satisfy the requirements. Boykin v. Alabama, 395 U.S. 238 (1969).

Under the facts here present it is also clear that these two sales by appellant were sufficiently separate as to constitute two distinct offenses. They were separate as to quantities, i.e., eight and one hundred tablets, payment, i.e., $2.00 and $20.00 and time, i.e., either ten minutes or forty-five minutes to an hour. The second sale involved the intervention of a third party. Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941) at pages 104-105: "When the 'transaction' consists of two or more criminal acts, the fact that the two ...


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