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COMMONWEALTH PENNSYLVANIA v. GARY L. SWAVELY (02/23/89)

filed: February 23, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
GARY L. SWAVELY, APPELLANT



Appeal from the PCHA of December 23, 1987 in the Court of Common Pleas of Berks County, Criminal Division, No. 83014901.

COUNSEL

George A. Gonzalez, Assistant Public Defender, Reading, for appellant.

Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Com., appellee.

Montemuro, Kelly and Popovich, JJ. Popovich, J., files a dissenting statement.

Author: Kelly

[ 382 Pa. Super. Page 62]

We are called upon, in this appeal, to determine whether the imposition of separate consecutive sentences for delivery of two different prohibited narcotics in a single plastic vial and in a single sale violated the double jeopardy proscription against multiple punishments for a single offense, and whether the imposition of separate consecutive sentences violated Pennsylvania's merger doctrine. Upon careful review of the record and the applicable authority, we find neither the double jeopardy proscription nor the Pennsylvania merger doctrine were violated. Accordingly, we affirm the trial court's order denying appellant's petition for post-conviction relief.

Appellant, Gary L. Swavely, was arrested and charged in six separate counts with violating the Controlled Substance, Drug, Device and Cosmetic Act (the Act), 35 Pa.C.S.A. § 780-113(a)(16) and (a)(30). Following a jury trial, appellant was convicted of possession with intent to deliver and delivery of a Schedule II controlled substance (Tuinal) and possession with intent to deliver and delivery of a Schedule IV controlled substance (Talwin). Timely post-verdict motions were filed, argued and denied. On October 3, 1985, the appellant was sentenced, pursuant to 35 Pa.C.S.A. § 780-113(f)(1) and (3), to two consecutive terms of imprisonment, one term for delivery of the Tuinal, and one term for delivery of the Talwin.*fn1 A direct appeal was taken to this Court in which appellant alleged ineffective assistance

[ 382 Pa. Super. Page 63]

    of trial counsel. This Court, by memorandum opinion, affirmed judgment of sentence on June 30, 1986.*fn2

Appellant subsequently filed a petition under the Post-Conviction Hearing Act alleging that his post-trial counsel was ineffective for failing to challenge the legality of the sentence. Specifically, appellant claimed that post-trial counsel should have challenged the trial court's imposition of consecutive sentences which appellant claimed violated his constitutional right against double jeopardy. Appellant claimed that he was sentenced twice for the same criminal offense. Appellant also argued that the Commonwealth used perjured testimony to obtain his conviction and that post-trial counsel was ineffective for failing to raise this issue. Following a hearing held December 23, 1987, the trial court denied appellant's request for post-conviction relief. This timely appeal followed.

Appellant's only contention on appeal is that his trial counsel and post-trial counsel were ineffective in failing to raise and preserve in the trial court and in this Court on direct appeal the issue of whether the appellant should have been sentenced twice for the same criminal transaction. We find no merit to this contention.

Initially, we note that appellant's claim, that trial counsel was ineffective for failing to challenge in the trial court the legality of the sentence imposed, has been waived as it was not raised at the earliest stage of the proceedings at which trial counsel no longer represented appellant. Commonwealth v. Cargo, 498 Pa. 5, 19, 444 A.2d 639, 645 (1982); Commonwealth v. House, 371 Pa. Super. 23, 27, 537 A.2d 361, 363 (1988); see also Commonwealth v. Fuller, 353 Pa. Super. 120, 509 A.2d 364 (1986). The question we are concerned with in this appeal is whether appellate counsel was ineffective for failing to challenge, on direct appeal, the legality of the sentence imposed. Of course, this claim could have been presented directly as a challenge to the legality of sentence instead of indirectly via an ineffective assistance of counsel claim. We note, however,

[ 382 Pa. Super. Page 64]

    that the election to present it in the form of an ineffectiveness claim has no practical effect on the disposition of this appeal.

Preliminarily, we note that the law presumes that counsel is effective and that the burden of establishing ineffective assistance of counsel rests upon the appellant. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985); Commonwealth v. Petras, 368 Pa. Super. 372, 534 A.2d 483 (1987). In order to establish a claim of ineffectiveness, appellant must show that: by act or omission counsel was arguably ineffective; counsel's act or omission could not have had an objectively reasonable basis designed to effectuate appellant's interest; and appellant was prejudiced by the act or omission in that but for the arguably ineffective act or omission there is a reasonable probability that the result would have been more favorable to appellant. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); see also Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Carelli, 377 Pa. Super. 117, 546 A.2d 1185 (1988); Commonwealth v. Petras, supra.

As stated previously, appellant's underlying claim is that imposition of separate consecutive sentences for delivery of two different prohibited narcotics in a single sale and in a single package violated the double jeopardy proscription against multiple sentences for a single offense and the Pennsylvania merger doctrine. After careful review, we find this claim wholly without merit.

I. DOUBLE JEOPARDY

The Double Jeopardy Clause of the Fifth Amendment, as applied to the states through the Due Process Clause of the Fourteenth Amendment, provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." The Constitutional prohibition of double jeopardy has been held to consist of three separate guarantees: (1) it protects against a second prosecution for the same offense after acquittal; (2) it protects against a second

[ 382 Pa. Super. Page 65]

    prosecution for the same offense after conviction; and (3) it protects against multiple punishments for the same offense. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Appellant's claim is that the trial court imposed separate consecutive sentences for a single offense. We are concerned, therefore, with only the third of these three guarantees. As such, the question we need to consider is whether delivery of a Schedule II drug and a Schedule IV drug in a single transaction constitutes the same offense for sentencing purposes.

In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Supreme Court enunciated the appropriate test to be applied to determine whether a single transaction violates two distinct statutory provisions. The Court stated:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not. 'A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal ...


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