Commonwealth v. Sunealitis ( 2016 )

J-A20002-16
2016 PA Super 292COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEVEN SUNEALITIS
Appellant No. 1409 WDA 2015
Appeal from the Judgment of Sentence July 13, 2015
In the Court of Common Pleas of Clearfield County
Criminal Division at No(s): CP-17-CR-0000713-2013
BEFORE: BOWES, STABILE AND MUSMANNO, JJ.
OPINION BY BOWES, J.: FILED DECEMBER 19, 2016
This appeal comes to us following resentencing conducted pursuant to
our May 8, 2015 decision vacating and remanding for that purpose. In our
prior decision, we sua sponte vacated judgment of sentence, finding that
Appellant’s mandatory minimum sentence, imposed pursuant to 18 Pa.C.S. §
7508, was illegal. Commonwealth v. Sunealitis, 122 A.3d 444, 2015 WL
7095181 (Pa.Super. 2015) (unpublished memorandum). On remand, the
trial court calculated Appellant’s offense gravity score as eleven, finding that
Appellant manufactured more than 100 grams of methamphetamine
pursuant to 18 Pa.C.S. § 7508 and resentenced him to six to twelve years
incarceration. Since the trial court and both parties continue to interpret an
infirm statute, we affirm on an alternative ground.
J-A20002-16
Preliminarily, we note that, on remand, we directed the trial court to
resentence Appellant without application of the mandatory minimum. The
trial court, however, calculated the offense gravity score by applying
language in that statute. The trial court and the parties have overlooked the
fact that the Sentencing Guidelines delineates the method by which a court
must calculate the offense gravity score when determining the amount of
drugs involved.
(e) Violations of The Controlled Substance, Drug, Device and
Cosmetic Act (35 P.S. §§ 780-101--780-144). If any mixture or
compound contains any detectable amount of a controlled
substance, the entire amount of the mixture or compound shall
be deemed to be composed of the controlled substance.
204 Pa.Code. § 303.3(e).
The facts are straightforward. On May 13, 2013, Pennsylvania Board
of Probation and Parole Agent James Shuttleworth visited Appellant’s
residence to perform a urine test. N.T. Jury Trial Vol. I, 12/27/14, at 43-45.
Appellant told him not to bother as he had recently ingested
methamphetamine. A small amount of methamphetamine (0.05 grams) was
recovered from the residence. Agent Shuttleworth’s search yielded
numerous items associated with small-scale methamphetamine
manufacture. Appellant admitted to the agent that he manufactured
methamphetamine in the residence. Id. at 53.
Members of the Pennsylvania State Police Clandestine Lab Response
Team executed a search warrant at Appellant’s residence. Id. at 72, 92.
-2-
J-A20002-16
Among other items, the search team recovered a Gatorade bottle containing
liquid waste byproduct generated by the manufacture of methamphetamine.
This byproduct included trace amounts of that drug in the amount of five-
hundredths of a gram. Appellant was subsequently charged with
manufacture of methamphetamine according to 35 P.S. § 780-113(a)(30).
He was additionally charged with the crimes of illegal dumping of
methamphetamine waste, possession of a controlled substance, and
possession of drug paraphernalia.
On June 17, 2013, the United States Supreme Court issued Alleyne v.
United States, 133 S. Ct. 2151 (2013), which held that any fact, other than
a prior conviction, that increases a mandatory minimum sentence is an
element of the crime that must be submitted to the jury. On December 17,
2013, in an attempt to comply with Alleyne, the Commonwealth filed a
motion to amend the manufacturing count in the information to allege an
additional fact in anticipation of its intent to seek a mandatory minimum
sentence pursuant to 18 Pa.C.S. § 7508. The proposed language read: “the
aggregate weight of the compound or mixture containing the substance
involved is at least 100 grams.” That language tracked the mandatory
sentencing statute, which states in pertinent part:
(4) A person who is convicted of violating section 13(a)(14),
(30) or (37) of The Controlled Substance, Drug, Device and
Cosmetic Act where the controlled substance is
methamphetamine or phencyclidine or is a salt, isomer or salt of
an isomer of methamphetamine or phencyclidine or is a mixture
-3-
J-A20002-16
containing methamphetamine or phencyclidine, containing a salt
of methamphetamine or phencyclidine, containing an isomer of
methamphetamine or phencyclidine, containing a salt of an
isomer of methamphetamine or phencyclidine shall, upon
conviction, be sentenced to a mandatory minimum term of
imprisonment and a fine as set forth in this subsection:
...
(iii) when the aggregate weight of the
compound or mixture containing the substance
involved is at least 100 grams; five years in
prison and a fine of $50,000 or such larger amount
as is sufficient to exhaust the assets utilized in and
the proceeds from the illegal activity; however, if at
the time of sentencing the defendant has been
convicted of another drug trafficking offense: eight
years in prison and $50,000 or such larger amount
as is sufficient to exhaust the assets utilized in and
the proceeds from the illegal activity.
18 Pa.C.S. § 7508(a)(4)(iii). The trial court granted the motion to amend on
January 13, 2014.
The jury trial commenced January 27, 2014. The contents of the
Gatorade bottle became a significant issue. The waste byproduct contents in
the bottle weighed approximately 288 grams. The Commonwealth argued
that this fact alone permitted a finding beyond a reasonable doubt that the
aggregate weight of the compound or mixture containing the substance
exceeded 100 grams, due to the trace amount of detectable
methamphetamine. The Commonwealth’s expert conceded that byproduct
always results from manufacturing methamphetamine, and that trace
amounts would always be present in the byproduct. Furthermore, only
sophisticated lab equipment could filter out the trace amounts. The expert
-4-
J-A20002-16
testified that all of the materials discovered in Appellant’s residence,
including the items that generated the waste product, would yield 5.76
grams of methamphetamine.
The verdict form asked the jury to determine the weight of
methamphetamine involved in the event it found Appellant guilty of
manufacturing. The jury was given four options, corresponding to the
provisions of 18 Pa.C.S. § 7508(a)(4)(i)-(iii): Less than five grams, between
five and ten grams, ten grams to one hundred grams, and over one hundred
grams. The jury rendered a verdict of guilty at all counts, and selected the
fourth option.
On March 13, 2014, the trial court imposed an aggregate judgment of
sentence of eight to sixteen years incarceration, including the then-
applicable mandatory minimum sentence. Since the mandatory sentencing
statute expressly stated that “Sentencing guidelines promulgated by the
Pennsylvania Commission on Sentencing shall not supersede the mandatory
sentences provided herein,” 18 Pa.C.S. § 7508(c), the trial court did not
calculate an offense gravity score for manufacturing methamphetamine.
Appellant lodged an appeal with this Court, raising a suppression issue
as well as a claim that the trial court erred in accepting the guilty verdict
despite insufficient evidence concerning the weight of the controlled
substances. We found no merit to the suppression motion, but sua sponte
addressed application of the mandatory sentence. We determined that the
-5-
J-A20002-16
fact-finding procedure employed resulted in an illegal sentence, relying upon
Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc), and
Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super. 2014). While the
jury found the facts triggering the mandatory minimum sentence beyond a
reasonable doubt, i.e., that the mixture containing the substance was over
100 grams, we held that the trial court had no authority to submit that issue
to the jury since the unconstitutional provisions of the statute—those
permitting the facts to be found by the trial judge by a preponderance of the
evidence—were not severable. “[T]he statutes are therefore
unconstitutional as a whole.” Valentine, supra at 812 (emphasis
added).1
In the present case, we thus remanded “with instructions to
resentence Appellant without consideration of the mandatory minimum
sentence at Section 7508(a)(4)(iii), consistent with this memorandum.” Due
to that resolution, we did “not consider Appellant’s two remaining issues,
challenging the application of Section 7508(a)(4)(iii) based on the weight of
the methamphetamine being over 100 grams.”
____________________________________________
1
Our Supreme Court subsequently adopted the rationale of these decisions.
See Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) and
Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016).
-6-
J-A20002-16
On July 13, 2015, the trial court resentenced Appellant to six to twelve
years incarceration at the count of manufacturing methamphetamine. 2 The
court calculated the offense gravity score for that charge as eleven. The
Offense Listing section of the Sentencing Guidelines, codified at 204
Pa.Code. § 303.15, assigns that offense gravity score to a conviction for 35
P.S. § 780-113(a)(30) when the amount of methamphetamine was between
100 and 1000 grams. A prior record score of five combined with an offense
gravity score of eleven yields a recommended standard range sentence of
seventy-two to ninety months of incarceration. Thus, Appellant received a
sentence at the bottom of the standard range.
Appellant filed a timely post-sentence motion, averring that the trial
court erroneously included the contents of the Gatorade bottle in its
calculations of the 100 grams and therefore incorrectly calculated the
offense gravity score. At a hearing on the post-sentence motion, the trial
court expressed its belief that the issue of the weight was the same as the
issue briefed during the first appeal; i.e, an interpretation of the language
contained in 18 Pa.C.S. § 7508(a)(4)(iii).
____________________________________________
2
Appellant received a concurrent period of two to four years of
incarceration at illegal dumping of methamphetamine waste, and one year of
probation at the possession of drug paraphernalia. Simple possession
merged with the manufacturing methamphetamine. The sentences for these
crimes are not challenged.
-7-
J-A20002-16
[Appellant]: Your Honor, this is a post sentence motion for
reconsideration of sentence. I know it was discussed at
[Appellant]’s re-sentencing, an objection was made. This is kind
of just a continuation of the same thing we’ve been dealing with.
The motion primarily speaks for itself. We’re just preserving the
record and intend to take it up again on appeal.
THE COURT: Well, it’s the same issue that we were hoping
was going to be decided by the [S]uperior [C]ourt the last
time, but it wasn’t. The record’s the same. I think I’ve
already written an opinion.
N.T. Motion for Reconsideration of Sentence, 8/11/15, at 2 (emphasis
added). On August 13, 2015, the court denied the motion, stating it was
denied “for the same reason [it] was previously denied.” Order, 8/13/15, at
1. Thus, while the trial court appropriately sentenced Appellant without
application of the mandatory minimum, it nevertheless determined that
Appellant possessed over 100 grams of methamphetamine based on the
language contained within the mandatory minimum statute.
On September 3, 2015, Appellant filed a timely notice of appeal. The
trial court did not submit a new written opinion, instead issuing an order on
November 4, 2015, adopting the opinion filed in the first appeal, which
interpreted 18 Pa.C.S. § 7508(a)(4)(iii). Appellant’s brief raises the
following issues for our consideration.
I. Whether the [trial c]ourt erred when, during the Appellant's
criminal jury trial, it denied the Defense's oral Motion for a
directed verdict, given that the Commonwealth did not present
evidence to the jury that would allow for a verdict that the
aggregate weight of a compound or mixture exceeded 100
grams, on March 11, 2014.
-8-
J-A20002-16
II. Whether the [trial c]ourt erred, on January 28, 2014, by
accepting the guilty verdict of the jury despite a lack of
sufficiency of evidence presented by the Commonwealth
concerning the aggregate weight of a compound or mixture
exceeding 100 grams, and subsequently sentenced the
Defendant based upon the guilty verdict on March 11, 2014 and
on July 13, 2015.
III. Whether the [trial c]ourt erred on July 2, 2014, and again on
August 11, 2015, when it denied the Defendant's Post-Sentence
Motions for Reconsideration.
Appellant’s brief at 7.
We address the two claims attacking the sufficiency of the evidence,
which were not addressed during the first appeal, together. Our standard of
review is well-settled.
In reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial, and all reasonable
inferences drawn from that evidence, when viewed in the light
most favorable to the Commonwealth as verdict winner, was
sufficient to enable the fact finder to conclude that the
Commonwealth established all of the elements of the offense
beyond a reasonable doubt. The Commonwealth may sustain its
burden by means of wholly circumstantial evidence. Further, the
trier of fact is free to believe all, part, or none of the evidence.
Commonwealth v. Woodard, 129 A.3d 480, 489–90 (Pa. 2015) (citations
omitted). “Whether sufficient evidence exists to support the verdict is a
question of law; our standard of review is de novo and our scope of review is
plenary.” Commonwealth v. Tejada, 107 A.3d 788, 722 (Pa.Super.
2015).
At the close of the Commonwealth’s case-in-chief, Appellant moved
for a directed verdict.
-9-
J-A20002-16
THE COURT: So if I’ve got this straight, you are asking me to
eliminate the jury being able to make a decision that the
aggregate weight of the compound or mixture containing the
methamphetamine is [a] hundred grams or more?
[APPELLANT]: That’s correct.
THE COURT: That’s the sole thing that you’re asking?
[APPELLANT]: That’s correct.
N.T., 1/27/14, at 207-08.
A motion for directed verdict is the same as a motion for judgment of
acquittal. “A motion for judgment of acquittal challenges the sufficiency of
the evidence to sustain a conviction on a particular charge, and is granted
only in cases in which the Commonwealth has failed to carry its burden
regarding that charge.” Commonwealth v. Emanuel, 86 A.3d 892, 894
(Pa.Super. 2014) (citation omitted).
No relief is due. Appellant’s argument transforms the mandatory
minimum sentence weight thresholds into an element of the crime.
However, nothing in the statute requires the Commonwealth to prove any
amount of weight. The crime at issue states:
(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, delivering or possessing with intent
to deliver, a counterfeit controlled substance.
35 P.S. § 780-113(a)(30). All parties agreed that the theory in this case
implicated only the manufacture alternative. N.T. Jury Trial Transcript Vol.
- 10 -
J-A20002-16
II, 1/28/14, at 33. The Commonwealth was thus only required to prove that
Appellant “manufacture[d] . . . a controlled substance.” Appellant’s request
was limited to preventing the jury from determining the issue of weight,
which was relevant only for purposes of sentencing. Weight is simply not an
element of the crime itself. Accordingly, the trial court did not err in denying
the motion, as the Commonwealth carried its burden and presented
sufficient evidence that Appellant manufactured methamphetamine.
Appellant’s third issue assails the trial court’s denial of his post-
sentence motion, in which he challenged the offense gravity score applied to
the manufacturing methamphetamine charge. This claim implicates the
discretionary aspects of the sentence. As required by Pa.R.A.P. 2119(f),
Appellant’s brief includes a separate statement of reasons in support of
reviewing the discretionary aspects of the sentence. Such a statement is
necessary because “there is no absolute right to appeal when challenging
the discretionary aspect of a sentence.” Commonwealth v. Ahmad, 961
A.2d 884, 886 (Pa.Super. 2008). An appellant must first satisfy a four-part
test to invoke this Court’s jurisdiction. We examine
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief
[complies with] Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
- 11 -
J-A20002-16
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013) (citation
omitted). The first three requirements have been met.
We also find that Appellant has satisfied the fourth requirement, as an
allegation that the trial court inappropriately calculated the offense gravity
score raises a substantial question.
An improper calculation of the offense gravity score affects the
outcome of the sentencing recommendations, resulting in an
improper recommendation, thereby compromising the
fundamental norms which underlie the sentencing process. We
thus hold that any misapplication of the Sentencing Guidelines
constitutes a challenge to the discretionary aspects of sentence.
A claim that the sentencing court misapplied the Guidelines
presents a substantial question.
Commonwealth v. Archer, 722 A.2d 203, 210–11 (Pa.Super. 1998).
Thus, we may address the merits of his claim.
We begin by noting our standard of review. The calculation of the
offense gravity score is a matter of statutory interpretation, which raises a
question of law. In Commonwealth v. Johnson, 125 A.3d 822 (Pa.Super.
2015), we reviewed the trial court’s determination that Johnson was a
repeat felon under 204 Pa.Code. § 303.4. Id. at 828. Johnson offered an
alternative interpretation of the statutory language. We found this
presented a question of law and applied the Statutory Construction Act, 1
Pa.C.S. §§ 1921-1939. Id. at 829. Thus, we shall apply a de novo review.
- 12 -
J-A20002-16
We begin by setting forth the trial court’s guideline calculations. We
explained in Commonwealth v. Spenny, 128 A.3d 234 (Pa.Super. 2015)
that
When sentencing a criminal defendant convicted of a felony
and/or misdemeanor, the trial court must consider, inter alia,
the sentencing guidelines adopted by the Pennsylvania
Commission on Sentencing (“Sentencing Commission”). 42
Pa.C.S.A. § 9721(b); 204 Pa.Code 303.1(a). To determine the
guideline sentence for each conviction, the trial court must
establish the offense gravity score and . . . . the defendant's
prior record score. 204 Pa.Code § 303.2(a).
Id. at 242.
Appellant does not dispute that his prior record score was properly
calculated as five. At issue is the trial court’s calculation of the offense
gravity score for manufacturing methamphetamine as eleven. As discussed
supra, the trial court determined that Appellant possessed over 100 grams
of methamphetamine by relying on its interpretation of 18 Pa.C.S. §
7508(a)(4)(iii)’s language, “when the aggregate weight of the compound or
mixture containing the substance involved is at least 100 grams.”
Appellant avers that the appropriate gravity score is six, which is the
applicable score where the amount of methamphetamine is two-and-one-
half grams or less. For an offense gravity score of six, the recommended
standard range sentence would fall to twenty-one to twenty-seven months.
204 Pa.Code. § 303.16(a). Appellant asserts that the trial court, in
calculating the weight as over 100 grams, erroneously included the weight of
- 13 -
J-A20002-16
the Gatorade bottle’s contents. He reaches the two-and-one-half grams
result by looking only towards the actual, ingestible methamphetamine
discovered.
In reaching this conclusion, Appellant offers a competing interpretation
of 18 Pa.C.S. § 7508. Appellant cites to a number of cases applying § 7508
to, inter alia, situations where drugs were mixed with cutting agents that
served to dilute the end product. He highlights that these decisions illustrate
that the policy rationale animating the mixture language in § 7508 is
directed only at individuals who dilute the end product and thereby sell more
drugs. He maintains that it is illogical to subject Appellant “to the same
mandatory standard as a drug dealer who took to the streets with over one
hundred grams of the drug.” Appellant’s brief at 22.
In support of this interpretation, Appellant points to decisions from
other jurisdictions that focus on the ultimate marketability of drugs when
interpreting similar statutory language. Appellant acknowledges that these
decisions are not uniform.
We find that the parties have directed their argument to the wrong
statutory language. The mandatory sentencing statute codified at § 7508
should have played no role whatsoever in determining the weight of the
methamphetamine. “Because Alleyne invalidates material requirements of
this statute, and because those provisions are non-severable . . . the
statute simply cannot be enforced by the judiciary in any respect.”
- 14 -
J-A20002-16
Commonwealth v. Wolfe, 140 A.3d 651, 662 (Pa. 2016). Accordingly, the
trial court erred by relying on § 7508 and the attendant language “the
aggregate weight of the compound or mixture containing the substance
involved.”
Having concluded an analysis of the operative phrase in § 7508 is now
irrelevant to the calculation of the offense gravity score, the question
becomes what language applies. The Sentencing Guidelines provides a clear
answer to this question.
(e) Violations of The Controlled Substance, Drug, Device and
Cosmetic Act (35 P.S. §§ 780-101--780-144). If any mixture
or compound contains any detectable amount of a
controlled substance, the entire amount of the mixture or
compound shall be deemed to be composed of the controlled
substance.
204 Pa.Code. § 303.3(e) (emphasis added). Notably, this language
explicitly directs the sentencing court to determine whether the mixture
contained any detectable amount of a controlled substance. The language
interpreted by the parties, in contrast, applies where “the aggregate weight
of the compound or mixture containing the substance is at least 100 grams.”
18 Pa.C.S. § 7508. Thus, any question as to whether the term mixture
standing alone should be interpreted, as urged by Appellant, to include some
notion of marketability is resolved by § 303.3(e)’s inclusion of “any
detectable amount.”
- 15 -
J-A20002-16
To the extent the trial court relied on its interpretation of 18 Pa.C.S. §
7508 and deferred to the jury’s factual findings under that language, that
reliance was misplaced. Since this question presents a question of law,
however, we continue our analysis to determine if the offense gravity score
was correctly calculated notwithstanding that error. Johnson, supra. This
is an issue of first impression. We are guided by these precepts:
In all matters involving statutory interpretation, we apply the
Statutory Construction Act, 1 Pa.C.S. §§ 1501 et seq., which
directs us to ascertain and effectuate the intent of the General
Assembly. 1 Pa.C.S. § 1921(a). To accomplish that goal, we
interpret statutory language not in isolation, but with reference
to the context in which it appears. See Consulting Eng'rs
Council of Penna. v. State Architects Licensure Bd., 522 Pa.
204, 560 A.2d 1375, 1377 (1989). A statute's plain language
generally provides the best indication of legislative intent. See,
e.g., McGrory v. Dep't of Transp., 591 Pa. 56, 915 A.2d 1155,
1158 (2007); Commonwealth v. Gilmour Mfg. Co., 573 Pa.
143, 822 A.2d 676, 679 (2003); Penna. Fin. Responsibility
Assigned Claims Plan v. English, 541 Pa. 424, 664 A.2d 84,
87 (1995) (“Where the words of a statute are clear and free
from ambiguity the legislative intent is to be gleaned from those
very words.”). Only where the words of a statute are
ambiguous will we resort to other considerations to
discern legislative intent. 1 Pa.C.S. § 1921(c)[.]
Commonwealth v. Kingston, 143 A.3d 917, 922 (Pa. 2016) (emphasis
added, some citations omitted).
The phrase “any detectable amount of a controlled substance” is clear
and free from any ambiguity. Appellant is correct that this language applies
equally to an individual possessing with the intent to deliver over 100 grams
of methamphetamine and Appellant, who reached the 100 gram threshold
- 16 -
J-A20002-16
largely through non-consumable waste byproduct. Yet we find that the
context of the statute is consistent with that result. From its inception, the
now-infirm mandatory sentence statute stated that “Sentencing Guidelines
promulgated by the Pennsylvania Commission on Sentencing shall not
supersede the mandatory sentences provided herein.” See Act No. 1988-
31, House Bill Number 668. Thus, the “any detectable amount of a
controlled substance” language of 204 Pa.Code. § 303.3(e) applies only
when a higher mandatory sentence does not otherwise apply. In this
respect, the trial court retained its discretion to deviate from the
recommended sentencing ranges, as the guidelines, unlike the mandatory
sentence provisions, are advisory. Commonwealth v. Griffin, 804 A.2d 1,
7–8 (Pa.Super. 2002) (citing Commonwealth v. Eby, 784 A.2d 204, 206
(Pa.Super. 2001)). Therefore, we find no ambiguity and do not resort to
other considerations to discern legislative intent. 1 Pa.C.S. § 1921(b)
(“When the words of a statute are clear and free from all ambiguity, the
letter of it is not to be disregarded under the pretext of pursuing its
spirit.”).3
____________________________________________
3
While we decline to look beyond the statutory language, we note our
disagreement with Appellant’s position that this outcome is absurd and
irrational. This argument overlooks the fact that the guidelines herein
applied to his conviction for manufacturing methamphetamine, not mere
possession. As the Commonwealth’s expert testified, the cooking process
presents a danger of fire, explosion, and other health hazards. N.T.
(Footnote Continued Next Page)
- 17 -
J-A20002-16
Accordingly, the trial court did not err in calculating Appellant’s offense
gravity score as eleven. We can affirm the trial court’s decision if there is
any basis to support it. Commonwealth v. Reese, 31 A.3d 708, 727
(Pa.Super. 2011) (en banc). Indeed, the aforementioned provision did not
merely permit the trial court to consider the contents in the Gatorade bottle
as constituting methamphetamine, it required the trial court to do so. “If
any mixture . . . contains any detectable amount of a controlled substance,
the entire amount of the mixture . . . shall be deemed to be composed of
the controlled substance.” 204 Pa.Code. § 303.3(e) (emphasis added).
Herein, there is no dispute that the contents of the Gatorade bottle
contained trace amounts of methamphetamine. Appellant’s sentencing claim
is limited to the calculation of the offense gravity score. Finding no error, we
affirm.
Judgment of sentence affirmed.
_______________________
(Footnote Continued)
1/27/14, at 164. While it is true that Appellant could have disposed of the
waste product, that point is irrelevant insofar as its presence demonstrates
beyond question that Appellant was engaged in the dangerous process of
manufacturing methamphetamine.
Indeed, the General Assembly applies the same offense gravity scores to
any violation of 35 P.S. § 780-113(a)(30), whether the case involves
possession with intent to deliver, actual delivery, or manufacture. The same
disparate treatment charge could be leveled at the fact that the guidelines
apply equally to those persons who actually deliver drugs and those who
merely intended to deliver them. We are unpersuaded that our
interpretation leads to absurd outcomes.
- 18 -
J-A20002-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2016
- 19 -