Appeal from the Order of the Superior Court at No. 2054, Philadelphia, 1984, Affirming the Order of the Court of Common Pleas, Criminal Division, Lackawanna County at No. 900 at 1983
Todd J. O'Malley, Scranton, Gerard W. Langan, Jr., Pittston, for appellant.
Ernest D. Preate, Jr., Dist. Atty., for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen and McDermott, JJ., dissent.
Appellant Lawrence Meyers challenges the Superior Court's order, 345 Pa. Super. 520, 498 A.2d 945, affirming the order of the Lackawanna County Court of Common Pleas which denied his motion to dismiss charges of violations of the Controlled Substance, Drug, Device and Control Act, 35 Pa.S. § 780-101 et seq. The Appellant contends that the lower courts erred in denying the motion because the Commonwealth's prosecution of the charges of possession and delivery of controlled substances would violate 18 Pa.C.S. § 110 and the double jeopardy clauses of the state and federal constitutions. We agree that prosecution of the charges of possession with intent to deliver violates § 110 of the Crimes Code and now reverse the Superior Court's order as it relates to those charges. As to the remaining charges of criminal conspiracy and delivery of a controlled substance, we affirm.
The underlying facts which culminated in the Appellant's arrest are as follows. The Appellant was one of several individuals who were targets of a 1982 drug investigation conducted by the Attorney General for the Commonwealth, the Lackawanna County District Attorney, and the police department of the city of Scranton. As part of the investigation, an authorized wiretap on the telephone lines of the suspects, including that of the Appellant, was obtained. During the tapping of the lines from December 1, 1982 to December 21, 1982, approximately 3,000 calls were recorded. The intercepted calls indicated numerous individuals' involvement in a drug distribution ring in Scranton. Based upon this information, search warrants were executed for the Appellant's residence and those of others implicated in the drug operation.
As police officers were in the process of executing one of the warrants on December 21, 1982, they observed the Appellant leaving the residence in a vehicle operated by his wife. The officers began to pursue the vehicle, believing that the Meyerses had picked up illegal narcotics at the
residence under surveillance. A high speed chase then ensued. The car chase concluded when the Meyers vehicle collided with two police cars. The Appellant continued on foot, but was caught immediately. Search of a bag carried by the Appellant disclosed cash totaling approximately $8,000, methamphetamines, and other unidentified pills.
Despite the police discovery of drugs and cash, the Meyerses were charged only with aggravated assault, resisting arrest, recklessly endangering other persons, and various violations of the vehicle code. The Appellant entered a guilty plea on these charges on April 21, 1983 and was sentenced on July 5, 1983. They were not arrested for or charged with any violations of the Controlled Substance, Drug, Device and Cosmetic Act even though drugs were found in their possession.
It was not until December 17, 1983, a year after the arrest, that Appellant was charged with drug-related offenses arising out of information gleaned from the wiretaps and the possession of the drugs and cash seized from the Meyerses during the prior arrest. The Appellant was charged with two counts of delivery of a controlled substance, three counts of possession of a controlled substance with intent to deliver, and three counts of criminal conspiracy. The delivery counts were alleged to have occurred on December 6, 1982 and December 10, 1982. The three counts of possession with intent to deliver, charging the Appellant with possession of the controlled substances of methamphetamine, ...