Commonwealth v. Vasquez

¶1concurring.

¶2I join in the opinion of the majority. I write separately to address the dissenting opinion.

¶3I concur with the dissent when it expresses dissatisfaction with the sentencing enhancement provisions at 18 Pa.C.S. § 7508. Like the dissent, I believe that the legislative enactment at issue ignores the recidivist philosophy of sentencing in favor of a mechanical application of enhanced penalties, which serves merely to add increased jail time at the whim of the prosecuting authority. As a jurist, I believe sentencing is an individualized procedure wherein the sentencing judge must balance multiple factors before imposing sentence on the defendant, which reflect the nature of the crime, its impact on the community, the particular victim, and the degree of culpability of the defendant. That is why I, like most jurists, advance the recidivist philosophy, as it best reflects the need for focusing on the individual defendant’s capability for rehabilitation when imposing sentence.

¶4However, I am compelled to recognize that the legislature in its infinite wisdom has the authority to enact sentencing *128schemes that reflect penal philosophies other than the recidivist philosophy. As this court acknowledged in Commonwealth v. Williams, 539 Pa. 249, 652 A.2d 283, 285 n. 1 (1994), there are other purposes to sentencing beyond individual deterrence and rehabilitation. Other recognized goals of sentencing include protection of society, general deterrence of criminal activity, and retribution. Id.In Williams, we examined the same statutory section at issue in this case, and found that the legislature left no ambiguity as to the clear intent to impose a mandatory enhancement without consideration of the recidivist philosophy. The dissent attempts to distinguish the holding in Williamsby focusing on the distinct procedural postures of the two cases. In Williams, the defendant was arrested and indicted separately for two drug sales. He pled to both indictments on the same day and was sentenced on the same day. In the instant case, the defendant was charged in one indictment for four distinct drug sales occurring on different dates. I cannot agree that these distinctions impact the outcome regarding the application of the enhancement provision. The differences between these two cases are immaterial to discerning the nature of the penal provision at issue.

¶5Accordingly, although I find the position of the dissent to be philosophically compelling, for the reasons stated herein, I am constrained to join the majority.

¶6dissenting.

¶7Because I disagree with the majority’s conclusion that the enhancement provision of 18 Pa.C.S. § 7508(a)(3)(i) applies where a defendant’s first and second convictions arise from a single arrest, I respectfully dissent.

¶8The record indicates that Appellee sold cocaine to an undercover police officer on May 5, 1997, June 2, 1997 and June 16, 1997. Instead of arresting Appellee after any of these sales, the officer scheduled a fourth sale with Appellee and on June 25, 1997, he attested to these transactions in an affidavit of probable cause and requested an arrest warrant. On June 26, 1997, the officer purchased more cocaine from Appellee and *129Appellee was arrested for all four drug sales that day. Appellee subsequently pled guilty to two counts on January 6,1998.1 As the majority notes, the trial court sentenced Appellee to one to two years on the first count (the June 16 th sale) and then applied § 7508(a)(3)(i), which enhances a defendant’s sentence if he has been convicted of another drug trafficking offense at the time of his sentencing, to the second count (the June 26th sale).

¶9I cannot agree with the majority that the trial court properly applied § 7508(a)(3)(i) to the instant case since the “prior conviction” here was the charge arising from the sale on June 16 th. Rather, I believe that since the officer opted not to arrest Appellee after the first three illicit sales, as he clearly could have done, the enhancement in § 7508(a)(3)(i) should not apply. In my view, the enhancement provision should apply only to those defendants who have already been given an opportunity to be rehabilitated, which Appellee was clearly never given in the instant case.

¶10In finding that the enhancement provision is applicable here, the majority relies on this Court’s decision in Commonwealth v. Williams, 539 Pa. 249, 652 A.2d 283. Williams, however, is readily distinguishable. In Williams, the defendant committed the first offense on November 2,1988 and was arrested. Two and one-half years later, on May 21, 1991, the defendant committed a second offense and was again arrested. Though the defendant was ultimately convicted of both offenses on the same day as a result of fortuitous circumstances, he clearly had the opportunity to be rehabilitated since he was arrested on two separate occasions, two years apart. Thus, it made sense to apply the enhancement provision to that situation. The circumstances in the instant case are significantly different. Here, the officer bought cocaine from Appellee on four separate occasions, and only arrested him after the last *130transaction. Therefore, unlike in Williams, the police did not arrest Appellee after the first illicit sale, and consequently Appellee was never given the opportunity to be rehabilitated. Instead,' after pleading guilty to both offenses on the same day, Appellee received the enhanced sentence. This outcome clearly undermines what I believe to be the purpose of § 7508(a)(3)(i).

¶11Moreover, the majority opinion ignores the fact that after the first three sales (May 5 th, June 2ndand June 16 th), the police had sufficient probable cause to either (1) arrest Appellee during the commission of the crime or (2) obtain an arrest warrant for Appellee’s immediate arrest. The police did neither. Instead, they set up another undercover buy, waited for Appellee to commit another crime, and only then did they arrest Appellee for the sales. While the majority holds that the enhancement provision is applicable to these circumstances, such a holding, in my view, risks endangering the public by allowing a known drug seller to continue selling drugs, thereby impacting the public at large. Moreover, this holding gives police the option of watching a person sell drugs numerous times before arresting the offender, solely for the purpose of making the enhancement provision applicable to the offender’s sentence. This practice offers offenders no opportunity for rehabilitation and in effect, grants police the discretion to determine the length of an offender’s sentence. Because I cannot agree that these were the intended consequences of § 7508(a)(3)(i), I must respectfully dissent.