concluding that the language of 18 Pa.C.S. section 7508(a)(3)(iii) is “susceptible to no ambiguity[.]”
How later courts described this case
- concluding that the language of 18 Pa.C.S. section 7508(a)(3)(iii) is “susceptible to no ambiguity[.]”
Written by the judges who cited it.
The opinion
CIRILLO, Judge,
concurring and dissenting:
I join Judge Kelly in his concurring and dissenting opinion and add only the following: While I recognize that the reasoning behind the recidivist philosophy has been borrowed from cases interpreting statutes different than the one at issue here, it is essential, in my opinion, that we remain consistent in our interpretation of penalty enhancement provisions. See Commonwealth v. Kane, 430 Pa.Super. 203 , 633 A.2d 1210 (1993) (en banc) (applying the pre-amendment section 7508, a defendant must be convicted of the prior offense before the commission of the subsequent offense for an enhanced sentence to attach); Commonwealth v. Beatty, 411 Pa.Super. 450 , 601 A.2d 1253 (1992) (en banc), aff'd, 533 Pa. 322 , 623 A.2d 814 (1993) (when determining penalty enhancement under 75 Pa. C.S. § 3731(e)®, the sentencing court must utilize the date of the offense for which defendant is to be sentenced and determine the number of prior' convictions as of that date); Com *97 monwealth v. Tobin, 411 Pa.Super. 460 , 601 A.2d 1258 (1992), aff'd, 533 Pa. 322 , 623 A.2d 814 (1993) (same); Commonwealth v. Eck, 411 Pa.Super. 465 , 601 A.2d 1261 (1992) (en banc), alloc. denied, 533 Pa. 607 , 618 A.2d 398 (1992, Table) (same); Commonwealth v. Dickerson, 404 Pa.Super. 249 , 590 A.2d 766 (1991), aff'd, 533 Pa. 294 , 621 A.2d 990 (1993) (for prior conviction to serve as an enhancer under 42 Pa.C.S.A. § 9714, the conviction must precede the commission of a later offense); Commonwealth v. Eyster, 401 Pa.Super. 477 , 585 A.2d 1027 (1991) (en banc), appeal denied, 529 Pa. 646 , 602 A.2d 857 (1992) (pursuant to 42 Pa.C.S.A. § 2154, in order for a prior conviction to apply to the prior record score for sentencing purposes, one must have been previously convicted for a crime committed before the current offense, whether or not a sentence has been imposed on the prior offense).
The clear spirit of the recidivist philosophy, as evidenced by the foregoing authority, dictates that the amended section 7508(a) be applied in the same fashion. The uniform application of recidivist provisions would undoubtedly serve to ensure continuity, efficiency, and stability in our judicial decision-making. Thus, in adhering to the underlying purpose of the recidivist philosophy as interpreted by the appellate courts in Pennsylvania, I would join Judge Kelly’s decision to vacate Rivera’s judgment of sentence and remand for resentencing.