Opinion
Argued: April 8, 1992.
Decided: June 17, 1992.
Appeal No. 153 E.D. Appeal Docket 1990 from the Order of the Superior Court, 392 Pa. Super. 411, 573 A.2d 222 (1990), at No. 1437 Philadelphia 1989, dated April 18, 1990, which affirmed the Judgment of Sentence entered by the Court of Common Pleas of Philadelphia, Criminal Division, at No. 4664, October Term, 1988.
John A. Ryan, Philadelphia, for appellant Lisboy.
John A. Packel, Chief, Appeal Div., Leonard Sosnov, Philadelphia, for amicus curiae Public Def. Ass'n of Pa. and Def. Ass'n of Philadelphia.
Joseph J. Hylan, Norristown, for amicus curiae Pub. Def. of Montgomery County.
Ronald Eisenberg, Deputy Dist. Atty., Catherine Marshall, Chief Appeals Div., Deborah Fleisher, Asst. Dist. Atty., for appellee Com.
Before FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.
OPINION OF THE COURT
In 1988, in the Court of Common Pleas of Philadelphia, the appellant, Israel Lisboy, was convicted of possession of a controlled substance with intent to deliver. Appellant was sentenced to three to six years imprisonment, and a fine of fifteen thousand dollars was imposed. An appeal was taken to the Superior Court, whereupon the judgment of sentence was affirmed. The present appeals, by allowance, ensued.
The sole issue presented is whether the mandatory sentencing provision in 18 Pa.C.S.A. § 7508(a)(3), under which the present sentence was imposed, was properly applied. This provision specifies a mandatory minimum sentence in cases where possession of controlled substances has involved quantities exceeding certain statutorily specified minimum weights. The present conviction resulted from appellant having been in possession of 18.77 grams of a mixture of powder containing cocaine. Appellant was sentenced under subparagraph (a)(3)(ii) of the statute, which is applicable where possession has involved a quantity of at least ten grams. Appellant asserts that the weight of the pure cocaine in the mixture, rather than the combined weight of the cocaine and the adulterants such as cutting agents in the mixture, should determine whether the mandatory sentencing provision is applicable. For the reasons stated in the opinion filed this day in Commonwealth v. Corporan, ___ Pa. ___, 613 A.2d 530 (1992), this assertion is without merit.
Order affirmed.
NIX, C.J., and LARSEN, J., did not participate in the consideration or decision of this case.
ZAPPALA, J., concurs in the result.
CAPPY, J., files a dissenting opinion.
I respectfully dissent for the reasons set forth in my dissenting opinion in Commonwealth v. Corporan, ___ Pa. ___, 613 A.2d 530 (1992).