Commonwealth v. Sunealitis

J-A20002-16

2016 PA Super 292

COMMONWEALTH 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7095181 (Pa.Super. 2015) (unpublished memorandum).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.

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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.

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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

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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

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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

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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).

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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.

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[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.

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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.

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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.

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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).

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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.

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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

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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.”

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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.”

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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

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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

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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)

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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.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/19/2016

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