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COMMONWEALTH PENNSYLVANIA v. MICHAEL SCOTT (02/05/82)

SUPERIOR COURT OF PENNSYLVANIA


February 5, 1982

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL SCOTT, APPELLANT

No. 1930 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Luzerne County at Nos. 1995 and 1996 of 1979.

Before Cercone, P.j., Wickersham and Brosky, JJ.

MEMORANDUM

On November 26, 1979, appellant, Michael Scott appeared before the Honorable Robert J. Hourigan at the Luzerne County Courthouse, represented by Michael J. Cefalo, Esquire. Under a plea agreement reached by the defendant, his attorney and the Commonwealth, Michael Scott agreed to plead guilty to possession with intent to deliver and delivery of a controlled substance; further, that he would make restitution in the amount $1,200.00, which amount was paid by the undercover agent to the defendant for the purchase of the controlled substance. Joseph H. Byerly from the Drug Control Center testified under oath as follows:

Q Mr. Byerly, will you state the quantity and type of drug which is involved here?

A The substance was represented as methamphetamine, approximately one half ounce. Upon analyzation it was found to be chlordiazepoxide, Schedule 4, of the narcotic controlled substances.

Q What was the quantity?

A The quantity was not given by the lab.

THE COURT: Well, at the price I imagine it was a pretty good size sale.

THE WITNESS: Yes, it was. It was represented to be one half ounce of methamphetamine.

BY MR. LIPKA:

Q And was there a subsequent delivery of another drug to you on another date?

A On May 16th there was delivery of a substance analyzed by the lab to contain no detectible controlled substance. That was represented by the defendant to be one half ounce of cocaine.

Q Do you know what that actually was?

A I don't know the contents of that. It was analyzed and found to contain no detectible controlled substance.

THE COURT: What was the payment on that or did the $1,200.00 include both?

THE WITNESS: The $1,200.00 included both; $700.00 for the May 16th charge and $500.00 for the May 7th charge.

THE COURT: Let me see the informations?

Possession with intent is also five years, $10,000.00?

MR. LIPKA: Possession with intent to deliver, right, your Honor.

Transcript at 3-4.

Subsequently, Michael Scott failed to appear for a scheduled sentencing and thereafter withdrew his plea of guilty and requested a jury trial. On June 23, 1980, a jury trial commenced before the Honorable Arthur D. Dalessandro in the Luzerne County Courthouse with Albert J. Flora, Esquire, Assistant Public Defender, representing Michael Scott. At the trial the Commonwealth pressed three charges:

THE COURT: Ladies and gentlemen of the jury, you've been selected to hear the case of Commonwealth of Pennsylvania versus Michael R. Scott, also known as Mickey Scott. If you hear the reference to the term 'Defendant' during the trial, that will refer to Mr. Scott.

The Commonwealth charges Mr. Scott with committing three criminal acts, those being as follows: That on the 7th day of May, 1979, in Luzerne County, Michael R. Scott, also known as Mickey Scott, did unlawfully possess with intent to deliver a quantity of chloradiazepoxide, a controlled substance;

The second charge is that on May 7, 1979, the Defendant, Michael R. Scott, also known as Mickey Scott, did unlawfully deliver a quantity of that drug, a controlled substance, to one Joseph H. Byerly.

The first charge that I read to you is designated as the charge of Possession with Intent to Deliver a Controlled Substance. The second charge which I just read to you is designated as Delivery of a Controlled Substance.

The third charge the Commonwealth has placed against the Defendant is that he is charged with having, on May 16, 1979, in Luzerne County, intentionally obtained or withheld property of another by deception, that being $700, which was the property of the Commonwealth of Pennsylvania. That third charge is designated as Theft by Deception.

Trial Transcript at 3-4.

The jury, following two days of testimony, found the defendant guilty of all three charges and sentencing was deferred.

On July 29, 1980 Michael Scott was again before Judge Dalessandro, again represented by Attorney Flora, for sentencing. Judge Dalessandro reviewed the presentence investigation, including two prior burglary convictions occurring in 1978 and 1980 and then stated:

THE COURT: Considering the extensive presentence investigation and the nature of the charge, the sentence of the Court is as follows: On delivery of a controlled substance, Defendant is sentenced to undergo imprisonment at Luzerne County Prison a minimum of one and a half years and a maximum of three years; Defendant must pay costs.

On the possession with intent to deliver, Court considers that Charge for sentencing purposes to be merged into the delivery of a controlled substance charge.

The record will indicate that both of those charges are contained in Information 1995 of 1979, the first count being possession with intent to deliver a controlled substance and the second count, delivery of a controlled substance.

On Information 1996 of 1979, theft by deception, Defendant is ordered to undergo imprisonment at Luzerne County Prison a minimum of two years and a maximum of four years; Defendant is ordered to pay costs of prosecution.

On the theft by deception, Defendant is also ordered to pay restitution which Court recalls is a total of $1,200.00

MR. GILLESPIE: $700.00 in 1996 and $500.00 in 1995.

THE COURT: Thank you. So that the record is clear, on 1996 of 1979, Defendant is ordered to make restitution on the losses of the victim and--strike that. Restitution in the amount of $700.00.

In 1995, the Defendant is to make restitution in the amount of $500.00.

So that there is no misunderstanding, restitution on each of the Informations, 1995 of '79 and 1996 of '79--the sentences are on 1995 of '79, second count, delivery of a controlled substance, minimum one and a half years, maximum three years, Luzerne County Prison.

On 1996, minimum two years, maximum four years in Luzerne County Prison.

Each of those sentences is to run concurrent with the other. Both of those sentences are to run consecutive to the sentence now being served.

So that there's completely no doubt whatsoever of the Court's sentencing, delivery of a controlled substance, second count, 1995 of 1979, minimum one and a half years, maximum three years, Luzerne County Prison; plus costs; plus restitution.

Theft by deception, 1996 of 1979, minimum two years, maximum four years; plus costs; plus restitution.

The sentence on each of those Informations is to run concurrent. The sentences on both of those Informations are to run consecutive to the sentence now being served, which means the time will be served on 1995 and 1996 together, but that time doesn't begin to be served until the sentence presently being served by the Defendant is complete.

Any questions, gentlemen?

MR. GILLESPIE: None, sir.

THE COURT: The reasons for the sentence are as follows: The severity and nature of the charge and the manner in which the crimes were committed; the contents of the Presentence Investigation indicating the Defendant's prior criminal conduct.

The Court also states as a reason that to allow this Defendant to be on the street selling drugs would be a severe hazard and harm to the community.

The court also specifically finds that incarceration is absolutely necessary because of the nature of the crimes and the background of the Defendant.

Sentencing Transcript at 5-8.

From the judgment of sentence this appeal followed.*fn1

The appellant in this case was sentenced well within the statutory maximum.

What we said recently in Commonwealth v. Zimmerman, 282 Pa. Super. 286, 422 A.2d 1119 (1980) (Opinion by Judge Hoffman) is pertinent here.

Appellant contends that his sentence was excessive and not sufficiently supported by a statement of reasons. We disagree. Appellant was sentenced to three-and-one-half-to-seven years imprisonment, finded $35,000.00, and charged costs for his four violations of the Controlled Substance, Drug, Device and Cosmetic Act. That sentence is within the limits established by the Act and we do not find it excessive. Id., ยง 13(b)-(h), 35 P.S. ยง 780-113(b)-(h). In Commonwealth v. Martin, 466 Pa. 118, 133, 351 A.2d 650, 658 (1976), the Supreme Court stated that the individualized determination inherent in the sentencing process required, at the minimum, a consideration of the particular circumstances of the offense and the character of the defendant. See also Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). In Commonwealth v. Pauze, 265 Pa. Super. 155, 158, 401 A.2d 848, 849 (1979), this Court noted that great deference is to be given to the trial court's discretion in sentencing, and that the reasons therefor must be set out in the record so that a determination can be made that discretion was, in fact, exercised.

Id. at , 422 A.2d at 1125.

Our review of the record reveals that the lower court complied with the mandates of Martin and Riggins. The sentencing colloquy amply shows that the lower court was aware of appellant's background information and gave long and deliberate consideration to the details.

Judgment of sentence affirmed.


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