from the Judgment of Sentence Entered June 8, 2018 In the
Court of Common Pleas of Allegheny County Criminal Division
at No(s): CP-02-CR-0009200-2017
BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.
Edward Glenn Terrel Ramsey, appeals from the judgment of
sentence imposed after he pled guilty to one count of
possession with intent to deliver a controlled substance
(PWID), and one count of delivery of a controlled substance.
On appeal, Appellant challenges the legality and
discretionary aspects of his sentence. After careful review,
we vacate Appellant's judgment of sentence and remand for
convictions stemmed from his single sale, to an undercover
police officer, of a compound mixture containing detectable
amounts of heroin and fentanyl. On March 13, 2018, Appellant
pled guilty to the above-stated offenses. He was initially
sentenced on June 5, 2018, to a term of 3 to 6 years'
incarceration. However, on June 8, 2018, the court sua
sponte vacated Appellant's sentence and resentenced
him to a term of 2 to 4 years' incarceration for his PWID
offense and a concurrent 6 years' probation for his
delivery conviction. The court also deemed Appellant eligible
for the Recidivism Risk Reduction Incentive Act, 61 Pa.C.S.
filed a timely post-sentence motion, which was denied. He
then filed a timely notice of appeal, and he also timely
complied with the trial court's order to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal.
The trial court filed its Rule 1925(a) opinion on October 11,
2018. Herein, Appellant presents two questions for our
review, which we have reordered for ease of disposition:
I. Did the trial court violate [Appellant's] double
jeopardy and due process rights under the United States and
Pennsylvania Constitutions by separately sentencing him on
two counts of [d]elivery of a [c]ontrolled substance where
one single compound containing detectable amounts of both
heroin and fentanyl was delivered; where a single criminal
act of delivery occurred; and where the specific kind of
controlled substance relates only to the applicable Offense
Gravity Score [(OGS)] and statutory maximum penalty, and not
the statutory elements of the offense?
II. Where only the most serious juvenile adjudication of each
prior disposition is counted in an individual's Prior
Record Score [(PRS)] pursuant to 204 Pa. Code § 303.6,
did the trial court err by calculating [Appellant's]
[PRS] as repeat felony offender [(RFEL)] where
[Appellant's] criminal record was comprised of two
juvenile adjudications for [b]urglary[, ] but where one such
adjudication was an adjudication without disposition?
Appellant's Brief at 5.
Appellant's first issue, he argues that the trial court
violated his double jeopardy protections under the United
States and Pennsylvania Constitutions by separately
sentencing him for two drug offenses that arose from a single
delivery of a compound mixture containing inseparable
controlled substances. Alternatively, he insists that his
sentences for both drug offenses under section 780-113(a)(30)
are illegal because those convictions must merge for
support of his arguments, Appellant directs our attention to
Commonwealth v. Farrow, 168 A.3d 207 (Pa. Super.
2017). There, Farrow was charged, convicted, and sentenced
for three counts of driving under the influence (DUI) -
general impairment pursuant to 75 Pa.C.S. § 3802(a)(1).
Id. at 213. For two of those counts, the
Commonwealth added a penalty enhancement under 75 Pa.C.S.
§ 3804. Id. The Farrow panel
recognized that in Commonwealth v. Mobley, 14 A.3d
887 (Pa. Super. 2011), our Court held "that the
provisions found in [section] 3804 were not elements of DUI
offenses and 'delineate[ only] the applicable penalties
to which a defendant is subject when convicted of
DUI.'" Farrow, 168 A.2d at 216 (quoting
Mobley, 14 A.3d at 894). Accordingly, we held
"that, pursuant to the guidance supplied in
Mobley, the trial court violated [Farrow's]
protection against double jeopardy" by "impos[ing]
three separate sentences at three counts that each alleged,
at bottom, a single criminal act in violation of the same
criminal statute." Id.
same is true in the instant case. Appellant received separate
sentences for two counts that each alleged, at bottom, a
single criminal act in violation of section 780-113(a)(30).
Each count pertained to a different controlled substance.
However, as Appellant observes, "there is nothing in the
plain language of [s]ection 780-113(a)(30) that states that
the particular drug delivered is an element of the offense -
all that is required is that a controlled substance is
delivered." Appellant's Brief at 34. Rather, the
specification of the particular drug delivered "relates
only to the OGS and the maximum possible penalties for
violating the Drug Act." Id. (citing 204 Pa.
Code § 303.15 (assigning an offense gravity score to
each offense and subcategorizing (a)(30) offenses by type (or
schedule) of substance and weight)); see also 35
P.S. §§ 780-113(f), (n), (o) (stating the grading
and maximum penalties for particular schedules of
our decision in Commonwealth v. Swavely, 554 A.2d
946 (Pa. Super. 1989), on which the trial court solely
relies, does not convince us that Appellant's separate
sentences are constitutionally permissible. There, Swavely
committed one drug delivery of two different types of
prescription pills contained in the same vial. Id.
at 949. For this act, he was convicted and separately
sentenced for two counts of delivery under section
780-113(a)(30). Id. In affirming Swavely's
sentences, we stressed that he had delivered two
separable substances and, therefore, "two
separate offenses occurred, and sentencing on both offenses
did not violate the Double Jeopardy Clause of the Fifth
Amendment." Id. Importantly, the
Swavely panel explicitly distinguished Swavely's
delivery of two different, and completely separable, pills
from "the delivery of a mixture or compound, in a single
unit, containing a detectable amount of more than one
controlled substance." Id. at 951. Accordingly,
Swavely does not control in the present case.
Rather, following the rationale of Farrow, we
conclude that the trial court violated Appellant's
protection against double jeopardy by imposing separate
sentences for convictions that stemmed from his single sale
of a compound substance containing inseparable controlled
agree with Appellant - as does the Commonwealth - that his
two convictions must at least merge for sentencing purposes.
Our General Assembly has directed that,
[n]o crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and all of the
statutory elements of one offense are included in the
statutory elements of the other offense. Where crimes merge
for sentencing purposes, the court may sentence the defendant
only on the higher graded offense.
42 Pa.C.S. § 9765. "The statute's mandate is
clear. It prohibits merger unless two distinct facts are
present: 1) the crimes arise from a single criminal act; and
2) all of the statutory elements of one of the offenses are
included in the statutory elements of the other."
Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa.
Appellant was convicted of two offenses that are both defined
by the same provision:
(30) Except as authorized by this act, the manufacture,
delivery, or possession with intent to manufacture or
deliver, a controlled substance by a person not registered
under this act, or a practitioner not registered or licensed
by the appropriate State board, or knowingly creating,