# Commonwealth v. Edwards

> Supreme Court of Pennsylvania · August 6, 1982 · 302 Pa. Super. 522

URL: https://www.frixlaw.com/law-library/cases/2108421

## Case

- **Full name:** COMMONWEALTH of Pennsylvania v. Darrell EDWARDS, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** August 6, 1982
- **Citations:** 302 Pa. Super. 522; 449 A.2d 38; 1982 Pa. Super. LEXIS 4881
- **Precedential status:** Published
- **Opinion:** Opinion by Brosky
- **Judges:** Brosky, Cirillo, Popovich
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2108421

## How later opinions describe it (automated extraction)

- stating: “Delivery necessarily includes possession with the intent to deliver and possession with the intent to deliver clearly includes possession”; controlled substances delivery conviction necessarily includes and merges with PWID and PWID necessarily includes and merges wi…

## Opinion text

BROSKY, Judge:
Appellant was tried without a jury and convicted of possessing a controlled substance,
1
possessing a controlled substance with intent to deliver,
2
and delivery of a controlled substance.
3
He was sentenced to a term of one and one-half to five years imprisonment on the delivery count; that sentence was suspended and appellant was placed on probation for five years. He was ordered to pay costs, a fine, and to repay the money used by the police to purchase the controlled substance from him. Upon payment of the costs, sentence was suspended as to the remaining counts. Post-trial motions were denied and this appeal followed. The sole issue before us is whether the possession counts merged with the delivery count. We find that they do and therefore reverse the judgment of sentence as to the possession counts.
Appellant argues that both the possession and possession with intent to deliver counts should be seen as merged into the delivery count.
4
In
Commonwealth v. Wojciechowski,
285 Pa.Super. 1, 7, 8 , 426 A.2d 674, 677 (1980), we explained (citing cases):
“It is well established that for two crimes to merge, one must ‘necessarily involve’ the other.... The true test of whether one criminal offense has merged into another . . . is whether one crime
necessarily involves
another, as for
*524
example, rape involves fornication, and robbery involves both assault and larceny.... Two crimes
may be
successive steps in
one
crime and therefore merge. . . . ” (emphasis in original)
Delivery necessarily includes possession with the intent to deliver and possession with the intent to deliver clearly includes possession. The charges are therefore merged for sentencing purposes. See 35 P.S. § 780-113(a)(30). See also
Commonwealth v. Williams,
219 Pa.Super. 304 , 279 A.2d 303 (1971), where possession and sale offenses were held to merge and
Commonwealth v. Everett,
290 Pa.Super. 344 , 434 A.2d 785 (1981), in which possession and possession with intent to deliver were found to merge.
A new trial is not, however, the proper remedy. Instead, we will vacate the suspended sentence as to the possession and possession with intent to deliver charges. See
Commonwealth v. Turner,
265 Pa.Super. 486 , 402 A.2d 542 (1979);
Commonwealth
v.
Brown,
290 Pa.Super. 448 , 434 A.2d 838 (1981).
Suspended sentence as to the possession and possession with intent to deliver counts vacated. Sentence affirmed as to the delivery conviction.
1
. 35 P.S. § 780-113(a)(16).
2
. 35 P.S. § 780-113(a)(30).
3
. 35 P.S. § 780-113(a)(30).
4
. Although appellant did not raise the issue as to the possession charge below, we will not treat it as having been waived. See:
Commonwealth v. Turner,
265 Pa.Super. 486 , 402 A.2d 542 (1979).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2108421. Public record. Not legal advice.