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COMMONWEALTH PENNSYLVANIA v. GARY LEE SLYMAN (09/21/84)

filed: September 21, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
GARY LEE SLYMAN, APPELLANT



No. 1094 Pittsburgh, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Beaver County, at Nos. 30, 31, 32, 33, 34 & 162 of 1980.

COUNSEL

Alan Ellis, Freedom, for appellant.

John L. Brown, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cercone, President Judge, and Spaeth and Hester, JJ. Spaeth, J., files a concurring opinion.

Author: Cercone

[ 334 Pa. Super. Page 421]

This is a direct appeal from the judgment of sentence imposed on October 8, 1980 by the Honorable John N. Sawyer, President Judge of the Court of Common Pleas of Beaver County.

On December 21, 1979, appellant was arrested and charged in six informations with sundry violations of the Controlled Substance, Drug, Device and Cosmetic Act (hereinafter referred to as "the Act").*fn1 Following a trial by jury, appellant was convicted on May 7, 1980 of six counts of possession with intent to deliver and delivery of cocaine;*fn2 one count of possession with intent to deliver and delivery of LSD;*fn3 one count of conspiracy to deliver cocaine;*fn4 one count of possession of cocaine;*fn5 and one count of possession of marijuana.*fn6

[ 334 Pa. Super. Page 422]

Timely written post-verdict motions in arrest of judgment and for a new trial were filed and denied. Appellant was sentenced, inter alia, to undergo imprisonment in a state correctional facility for a period of not less than one and a half (1 1/2) nor more than three (3) years. This period of internment was then to be followed by a consecutive term of probation of three (3) years. In addition, appellant was ordered to make restitution in the sum of Three Thousand Nine Hundred and Eighty-Five Dollars ($3,985), and pay a fine of Five Thousand Dollars ($5,000) together with the costs of his prosecution.

The facts and procedural history relevant to the instant appeal are as follows: Dale W. Kenst, Jr., a paid informant for the Commonwealth, met with appellant on October 26, 1979 at Larry's Speed Shop, appellant's place of business, for the purpose of consummating an illicit sale of drugs. Acting on behalf of Agent Charles A. Gahagan of the Pennsylvania Department of Justice, Kenst purchased approximately one gram of cocaine from appellant. Later that same day, appellant sold to Kenst an additional one-half ounce of cocaine for One Thousand Dollars ($1,000). Kenst delivered the cocaine purchased in the two transactions to Agent Gahagan.

Gahagan returned alone to the Speed Shop on December 5, 1979 and again purchased one-half ounce of cocaine from appellant for Nine Hundred Fifty Dollars ($950).

On December 12, 1979, Gahagan procured from appellant one ounce of cocaine at a cost of One Thousand Eight Hundred Seventy-Five Dollars ($1,875), as well as one hundred (100) dosage units of LSD for the price of One Hundred Sixty Dollars ($160).

Agent Gahagan met with appellant at the Speed Shop on December 21, 1979 in order to secure an additional four grams of cocaine which appellant agreed to furnish on the previous day. Upon his arrival at the shop, Gahagan was shown two of the promised four ounces of the drug and was advised to wait for the remaining half of his order which, he was told, was due to be delivered to the Speed Shop by

[ 334 Pa. Super. Page 423]

    appellant's supplier within minutes. At approximately 2:20 p.m., a vehicle driven by an individual subsequently identified as appellant's confederate, George Gordon, pulled to a stop in front of the store. Gordon alighted from his automobile and entered the store where he met with appellant for a brief period. After Gordon departed from the premises, appellant informed Agent Gahagan that the additional two ounces of cocaine had just been delivered by his supplier and that he was now prepared to conclude the transaction. Gahagan then identified himself as a policeman and attempted to place appellant under arrest.

Upon learning Gahagan's true identity, appellant fled the store clutching a tan-colored jacket which he quickly discarded on the street. Other law enforcement officers who were secretly observing the proceedings in the Speed Shop gave chase to appellant and apprehended him in short order. After appellant was taken into custody, his jacket was impounded and a cursory search conducted of its pockets without a warrant. This inspection yielded a plastic bag containing approximately seven grams of cocaine.

Following on the heels of appellant's arrest was the issuance of a search warrant for his apartment. Acting pursuant to the warrant, law enforcement officials confiscated small amounts of cocaine and marijuana as well as a scale allegedly used in weighing drugs.

By a pre-trial motion, which was subsequently denied by the court, trial counsel for appellant had moved to suppress evidence of the seizure of the controlled substances from appellant's residence. Counsel did not endeavor to suppress the Commonwealth's use of the cocaine removed from appellant's jacket after his apprehension. In addition, he did not oppose the consolidation in one trial of the fifteen separate criminal offenses with which appellant was charged. Counsel did, however, seek a continuance of the trial four days prior to its scheduled commencement. The reason stated in support of this request was counsel's inability to obtain a treatise entitled "Cocaine: Legal and Technical Defenses in Cocaine Prosecutions." Counsel contended

[ 334 Pa. Super. Page 424]

    that the book was necessary in his preparation for trial given the fact that he had never previously represented a defendant in a case involving cocaine. The trial judge refused to grant the continuance and directed appellant to proceed to trial.

In taking this appeal, appellant raises fifteen issues for our resolution. We will address them in seriatim fashion.

1.

Appellant first contends that the evidence adduced by the Commonwealth at trial was insufficient as a matter of law to prove him guilty of the various "cocaine offenses" with which he was charged. The crux of this argument is that the Commonwealth failed to prove beyond a reasonable doubt an essential component of each of the crimes charged, viz., that the substance which appellant sold to an undercover state trooper, and which was later confiscated from appellant's person and residence, was a "controlled substance" as that term is defined in Schedule II of the Act. Appellant maintains that under the terms of Section 104(2)(i)(4)*fn7 of the statute, cocaine will qualify as a controlled substance only if it is that variety of cocaine which is naturally derived from coca leaves. He posits that only L-cocaine is proscribed under this section since, as the testimony elicited at trial clearly established, it alone among the eight varieties or isomers of cocaine extant is produced directly through extraction from coca leaves. Consequently, he argues that because the testing procedures employed by the Commonwealth's chemists on samples of the cocaine seized from him were incapable of distinguishing between the naturally occurring L-cocaine and a synthetically producible

[ 334 Pa. Super. Page 425]

    form of cocaine known as D-cocaine, the Commonwealth failed to meet its burden of proving beyond a reasonable doubt that the substance in question was in fact a "controlled substance." We are not persuaded by this argument.

At trial, appellant presented as his only witness Dr. Gordon R. Johnston, a professor of organic chemistry at the Pennsylvania State University. Dr. Johnston testified that the term "cocaine" is meaningful only in a generic sense and that in reality, there are eight distinct isomers of cocaine. Isomers are two or more compounds which share with one another the same molecular formula while possessing different structural arrangements and properties. Dr. Johnston averred that only the isomer L-cocaine occurs naturally in coca leaves. Thus, appellant argues that since only L-cocaine is derived naturally from coca leaves, it alone is a controlled substance, and because the Commonwealth was unable to distinguish between L-cocaine and the synthetically producible form of cocaine known as D-cocaine, the charges filed against appellant were not proved beyond a reasonable doubt. In other words, appellant contends that the tests conducted by the Commonwealth chemists in analyzing the substance sold by appellant to Agent Gahagan as "cocaine" failed to winnow the allegedly non-prohibited from the prohibited isomeric forms of cocaine.

The Commonwealth's expert witnesses, two forensic chemists, Scott Ermlick and Christine Tomsey, described the techniques utilized in testing the drugs as well as their views on the actual identity of the substance. These chemists concurred in the testimony elicited from Dr. Johnston concerning the existence of eight separate types of cocaine. Scott Ermlick agreed with Dr. Johnston that of these various isomers, only L-cocaine is found in coca leaves, but in addition, testified that D-cocaine is a synthetically producable form of cocaine. Both Ermlick and Tomsey testified under cross-examination that the four tests which they performed on the substance did not conclusively identify it as L-cocaine. They did state, however, that from the performance

[ 334 Pa. Super. Page 426]

    of a color test, a sniff test, a micro-crystal test and an infra-red spectraphotometry test, they were able to confirm the presence of only two of the eight isomeric forms of cocaine known to exist. These isomers were identified as the synthetic D-cocaine and the organic L-cocaine. The issue then becomes whether only L-cocaine is a controlled substance or whether D-cocaine also fits into this category.

We find that, contrary to appellant's representations, the terms of Section 104 make clear that the statute's prohibitory sweep is sufficiently wide so as to embrace those varieties of cocaine which are susceptible of synthetic derivation. Paragraph (i) of Section 104(2) of the Controlled Substance, Drug, Device ...


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