PRINTER'S NO. 1416
No. 1204 Session of 1985
INTRODUCED BY FOX, NAHILL, HALUSKA, BELFANTI, NOYE, STABACK,
PETRONE, GEIST, KENNEY, RAYMOND, JOHNSON, SAURMAN, DeLUCA,
CIMINI, DISTLER, LANGTRY, WOZNIAK, PETRARCA, GANNON, PERZEL,
HERMAN, E. Z. TAYLOR, ACOSTA, HERSHEY AND PUNT, MAY 13, 1985
REFERRED TO COMMITTEE ON JUDICIARY, MAY 13, 1985
AN ACT
1 Amending the act of April 14, 1972 (P.L.233, No.64), entitled
2 "An act relating to the manufacture, sale and possession of
3 controlled substances, other drugs, devices and cosmetics;
4 conferring powers on the courts and the secretary and
5 Department of Health, and a newly created Pennsylvania Drug,
6 Device and Cosmetic Board; establishing schedules of
7 controlled substances; providing penalties; requiring
8 registration of persons engaged in the drug trade and for the
9 revocation or suspension of certain licenses and
10 registrations; and repealing an act," further providing for
11 prohibited acts, penalties and forfeiture.
12 The General Assembly of the Commonwealth of Pennsylvania
13 hereby enacts as follows:
14 Section 1. Section 13(a) of the act of April 14, 1972
15 (P.L.233, No.64), known as The Controlled Substance, Drug,
16 Device and Cosmetic Act, is amended by adding clauses and the
17 section is amended by adding subsections to read:
18 Section 13. Prohibited Acts; Penalties.--(a) The following
19 acts and the causing thereof within the Commonwealth are hereby
20 prohibited:
21 * * *
1 (36) The use of any communication facility in committing,
2 causing or facilitating the commission of any act constituting a
3 felony under this act. Each separate use of a communication
4 facility shall be a separate offense under this clause. For
5 purposes of this clause, the term "communication facility" means
6 public and private instrumentalities used or useful in the
7 transmission of writing, signs, signals, pictures or sound and
8 includes mail, telephone, wire, radio and all other means of
9 communication.
10 (37) The attempting, soliciting or conspiring to commit an
11 offense defined in this act.
12 (38) The engaging in a continuing criminal enterprise. For
13 purposes of this clause, a person is engaged in a continuing
14 criminal enterprise if:
15 (i) The person violates any provision of this act the
16 punishment for which is a felony; and
17 (ii) The violation is a part of a continuing series of
18 violations of this act:
19 (A) Which are undertaken by such person in concert with five
20 or more other persons with respect to whom the person occupies a
21 position of organizer, a supervisory position or any other
22 position of management.
23 (B) From which such person obtains substantial income or
24 resources.
25 * * *
26 (l) Any person who violates clause (36) of subsection (a)
27 shall, on conviction thereof, be sentenced to imprisonment of
28 not more than four years or pay a fine not exceeding thirty
29 thousand dollars ($30,000), or both, except that if any person
30 commits a violation after one or more prior convictions for a
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1 violation of this section or for a felony under any other
2 provision of this act or a similar offense under any other
3 statute of the United States or of any state which shall have
4 become final, the person shall, upon conviction thereof, be
5 sentenced to imprisonment of not more than eight years or pay a
6 fine not exceeding sixty thousand dollars ($60,000), or both.
7 For purposes of this subsection, a conviction is final upon the
8 imposition of sentence.
9 (m) Any person who violates clause (37) of subsection (a)
10 shall be punished by imprisonment or fine, or both, which may
11 not exceed the maximum punishment prescribed for the offense,
12 the commission of which was the object of the attempt,
13 solicitation or conspiracy.
14 (n) (1) Any person who violates clause (38) of subsection
15 (a) shall be sentenced to a term of imprisonment which may not
16 be less than ten years and which may be up to life imprisonment,
17 to a fine not exceeding one hundred thousand dollars ($100,000),
18 and to the forfeiture prescribed in clause (2), except that if
19 any person engages in such activity after one or more prior
20 convictions under clause (38) of subsection (a) have become
21 final, the person shall, upon conviction thereof, be sentenced
22 to imprisonment which may not be less than twenty years and
23 which may be up to life imprisonment, to a fine of not more than
24 two hundred thousand dollars ($200,000) and to the forfeiture
25 prescribed in clause (2). For purposes of this subsection, a
26 conviction is final upon the imposition of sentence.
27 (2) Any person who is convicted under clause (38) of
28 subsection (a) of engaging in a continuing criminal enterprise
29 shall forfeit to the Commonwealth:
30 (i) The proceeds obtained by him in the enterprise.
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1 (ii) Any of his interest in, claim against or property or
2 contractual rights of any kind affording a source of influence
3 over the enterprise.
4 (3) There shall be no authority in any court to impose on an
5 offender to which this subsection is applicable any lesser
6 sentence than provided for herein or to place the offender on
7 probation or to suspend sentence. Nothing in this subsection
8 shall prevent the sentencing court from imposing a sentence
9 greater than provided herein. Sentencing guidelines promulgated
10 by the Pennsylvania Commission on Sentencing shall not supersede
11 the mandatory sentences provided herein.
12 (4) If a sentencing court refuses to apply this subsection
13 where applicable, the Commonwealth shall have the right to
14 appellate review of the action of the sentencing court. The
15 appellate court shall vacate the sentence and remand the case to
16 the sentencing court for imposition of a sentence in accordance
17 with this subsection if it finds that the sentence was imposed
18 in violation of this subsection.
19 Section 2. The act is amended by adding a section to read:
20 Section 13.1. Drug Trafficking; Penalties.--(a)
21 Notwithstanding any other provisions of this or any other act to
22 the contrary, the following provisions shall apply:
23 (1) Any person who manufactures, delivers, brings into this
24 Commonwealth, cultivates or possesses with intent to
25 manufacture, deliver or cultivate 50 pounds or more of marihuana
26 is guilty of a felony, and upon conviction, if the quantity of
27 marihuana involved is:
28 (i) fifty pounds or more, but less than 100 pounds, the
29 person shall be sentenced to a mandatory minimum term of
30 imprisonment of one year and shall be fined not less than five
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1 thousand dollars ($5,000) or such larger amount as is sufficient
2 to exhaust the assets utilized in and the proceeds from the
3 illegal activity;
4 (ii) one hundred pounds or more, but less than 500 pounds,
5 the person shall be sentenced to a mandatory minimum term of
6 imprisonment of two years and shall be fined not less than ten
7 thousand dollars ($10,000) or such larger amount as is
8 sufficient to exhaust the assets utilized in and the proceeds
9 from the illegal activity; or
10 (iii) five hundred pounds or more, the person shall be
11 sentenced to a mandatory minimum term of imprisonment of three
12 years and shall be fined not less than twenty-five thousand
13 dollars ($25,000) or such larger amount as is sufficient to
14 exhaust the assets utilized in and the proceeds from the illegal
15 activity.
16 (2) Any person who manufactures, delivers, brings into this
17 Commonwealth, or possesses with intent to manufacture or deliver
18 50 grams or more of heroin or any salt thereof, morphine or any
19 salt thereof, opium or any derivative thereof, or of any mixture
20 containing any such substance, is guilty of a felony and upon
21 conviction, if the quantity of such substance involved is:
22 (i) fifty grams or more, but less than 200 grams, the person
23 shall be sentenced to a mandatory minimum term of imprisonment
24 of two years and shall be fined not less than ten thousand
25 dollars ($10,000) or such larger amount as is sufficient to
26 exhaust the assets utilized in and the proceeds from the illegal
27 activity;
28 (ii) two hundred grams or more, but less than 500 grams, the
29 person shall be sentenced to a mandatory minimum term of
30 imprisonment of four years and shall be fined not less than
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1 twenty-five thousand dollars ($25,000) or such larger amount as
2 is sufficient to exhaust the assets utilized in and the proceeds
3 from the illegal activity; or
4 (iii) five hundred grams or more, the person shall be
5 sentenced to a mandatory minimum term of imprisonment of five
6 years and shall be fined not less than fifty thousand dollars
7 ($50,000) or such larger amount as is sufficient to exhaust the
8 assets utilized in and the proceeds from the illegal activity.
9 (3) Any person who manufactures, delivers, brings into this
10 Commonwealth or possesses with intent to manufacture or deliver
11 50 grams or more of cocaine, or any salt, compound, derivative,
12 or preparation of coca leaves, except decocainized coca leaves
13 or extracts of coca leaves which do not contain cocaine or
14 ecgonine, or any mixture containing any such substances, is
15 guilty of a felony and, upon conviction, if the quantity of such
16 substance involved is:
17 (i) fifty grams, but less than 200 grams, the person shall
18 be sentenced to a mandatory minimum term of imprisonment of one
19 year and shall be fined not less than five thousand dollars
20 ($5,000) or such larger amount as is sufficient to exhaust the
21 assets utilized in and the proceeds from the illegal activity;
22 (ii) two hundred grams or more, but less than 500 grams, the
23 person shall be sentenced to a mandatory minimum term of
24 imprisonment of two years and shall be fined not less than ten
25 thousand ($10,000) or such larger amount as is sufficient to
26 exhaust the assets utilized in and the proceeds from the illegal
27 activity; or
28 (iii) five hundred grams or more, the person shall be
29 sentenced to a mandatory minimum term of imprisonment of three
30 years and shall be fined not less than twenty thousand dollars
19850H1204B1416 - 6 -
1 ($20,000) or such larger amount as is sufficient to exhaust the
2 assets utilized in and the proceeds from the illegal activity.
3 (4) Any person who manufactures, delivers, brings into this
4 Commonwealth, or possesses with intent to manufacture or deliver
5 50 grams or more of methamphetamine, or any salt, isomer or salt
6 of an isomer thereof, or of amphetamine, or any salt, optical
7 isomer, or salt of an optical isomer thereof, or of any mixture
8 containing any such substance, is guilty of a felony and, upon
9 conviction, if the quantity of such substance involved is:
10 (i) fifty grams or more, but less than 200 grams, the person
11 shall be sentenced to a mandatory minimum term of imprisonment
12 of one year and shall be fined not less than five thousand
13 dollars ($5,000) or such larger amount as is sufficient to
14 exhaust the assets utilized in and the proceeds from the illegal
15 activity;
16 (ii) two hundred grams, but less than 500 grams, the person
17 shall be sentenced to a mandatory minimum term of imprisonment
18 of two years and shall be fined not less than ten thousand
19 dollars ($10,000) or such larger amount as is sufficient to
20 exhaust the assets utilized in and the proceeds from the illegal
21 activity; or
22 (iii) five hundred grams or more, the person shall be
23 sentenced to a mandatory minimum term of imprisonment of three
24 years and shall be fined not less than twenty thousand dollars
25 ($20,000) or such larger amount as is sufficient to exhaust the
26 assets utilized in and the proceeds from the illegal activity.
27 (5) Any person who manufactures, delivers, brings into this
28 Commonwealth, or possesses with intent to manufacture or deliver
29 1,000 or more tablets, capsules or other dosage units, or the
30 equivalent quantity, of methaqualone, is guilty of a felony and,
19850H1204B1416 - 7 -
1 upon conviction, if the quantity of methaqualone involved is:
2 (i) one thousand or more, but less than 5,000 tablets,
3 capsules, or other dosage units or the equivalent quantity, the
4 person shall be sentenced to a mandatory minimum term of
5 imprisonment of one year and shall be fined not less than five
6 thousand dollars ($5,000) or such larger amount as is sufficient
7 to exhaust the assets utilized in and the proceeds from the
8 illegal activity;
9 (ii) five thousand or more, but less than 10,000 tablets,
10 capsules, or other dosage units or the equivalent quantity, the
11 person shall be sentenced to a mandatory minimum term of
12 imprisonment of two years and shall be fined not less than ten
13 thousand dollars ($10,000) or such larger amount as is
14 sufficient to exhaust the assets utilized in and the proceeds
15 from the illegal activity; or
16 (iii) ten thousand or more tablets, capsules, or more dosage
17 units or the equivalent quantity, or more, the person shall be
18 sentenced to a mandatory minimum term of imprisonment of three
19 years and shall be fined not less than twenty thousand dollars
20 ($20,000) or such larger amount as is sufficient to exhaust the
21 assets utilized in and the proceeds from the illegal activity.
22 (b) Except as otherwise set forth in subsection (c), there
23 shall be no authority in any court to impose on an offender to
24 which this section is applicable any lesser sentence than
25 provided for herein or to place the offender on probation or to
26 suspend sentence. Nothing in this section shall prevent the
27 sentencing court from imposing a sentence greater than provided
28 herein. Sentencing guidelines promulgated by the Pennsylvania
29 Commission on Sentencing shall not supersede the mandatory
30 sentences provided herein.
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1 (c) The court imposing sentence hereunder may impose a
2 reduced sentence only if the Commonwealth moves for same. The
3 only grounds for such motion by the Commonwealth shall be that
4 the defendant has provided substantial assistance in the
5 identification, arrest or conviction of any of his or her
6 accomplices, accessories, coconspirators or principals. Upon the
7 filing of such motion, the court imposing sentence hereunder
8 shall order a hearing for the time of sentencing at which the
9 Commonwealth shall present evidence to support its motion. For
10 good cause shown, the motion may be filed and heard in camera.
11 At the conclusion of such hearing at time of sentence, the judge
12 shall have the discretion to impose a reduced sentence if the
13 judge finds that the defendant has rendered substantial
14 assistance as set forth by the Commonwealth. Neither failure of
15 the judge to find that substantial assistance has been rendered
16 nor refusal by the judge to impose a reduced sentence shall be
17 grounds for any appeal by the defendant.
18 (d) If a sentencing court refuses to apply this section
19 where applicable, the Commonwealth shall have the right to
20 appellate review of the action of the sentencing court. The
21 appellate court shall vacate the sentence and remand the case to
22 the sentencing court for imposition of a sentence in accordance
23 with this subsection if it finds that the sentence was imposed
24 in violation of this section.
25 Section 3. Sections 28(a)(6) and 29(a)(6) and (e) of the
26 act, amended December 14, 1984 (P.L.988, No.200), are amended to
27 read:
28 Section 28. Forfeiture.--(a) The following shall be subject
29 to forfeiture to the Commonwealth and no property right shall
30 exist in them:
19850H1204B1416 - 9 -
1 * * *
2 (6) (i) [Consideration as follows] All the following:
3 (A) Money, negotiable instruments, securities or other
4 things of value furnished or intended to be furnished by any
5 person in exchange for a controlled substance in violation of
6 this act and all proceeds traceable to such an exchange.
7 [(B) Proceeds traceable to such an exchange.]
8 (C) Money, negotiable instruments and securities used or
9 intended to be used to facilitate any violation of this act.
10 (D) Real property used or intended to be used to facilitate
11 any violation of this act, including things growing on, affixed
12 to and found in the land.
13 (ii) No property shall be forfeited under this clause, to
14 the extent of the interest of an owner, by reason of any act or
15 omission established by the owner to have been committed or
16 omitted without the knowledge or consent of that owner. Such
17 money and negotiable instruments found in close proximity to
18 controlled substances possessed in violation of this act shall
19 be rebuttably presumed to be proceeds derived from the selling
20 of a controlled substance in violation of this act.
21 * * *
22 Section 29. Procedure With Respect to Seized Property
23 Subject to Liens and Rights of Lienholders.--
24 (a) The proceedings for the forfeiture or condemnation of
25 property, the sale of which is provided for in this act, shall
26 be in rem, in which the Commonwealth shall be the plaintiff and
27 the property the defendant. A petition shall be filed in the
28 court of common pleas of the judicial district where the
29 property is located, verified by oath or affirmation of an
30 officer or citizen, containing the following:
19850H1204B1416 - 10 -
1 (1) A description of the property seized;
2 (2) A statement of the time and place where seized;
3 (3) The owner, if known;
4 (4) The person or persons in possession, if known;
5 (5) An allegation that the property is subject to forfeiture
6 pursuant to subsection (a) of section 28 and an averment of
7 material facts upon which the forfeiture action is based;
8 (6) A prayer for an order of forfeiture that the property be
9 adjudged forfeited to the Commonwealth and condemned and be
10 ordered sold [according to law] or retained for official use in
11 accordance with section 28(e), unless cause be shown to the
12 contrary.
13 * * *
14 (e) At the time of the hearing, if the Commonwealth produces
15 evidence that the property in question was unlawfully used [or],
16 possessed or otherwise subject to forfeiture under section
17 28(a), the burden shall be upon the claimant to show:
18 (1) That the claimant is the owner of the property or the
19 holder of a chattel mortgage or contract of conditional sale
20 thereon;
21 (2) That the claimant lawfully acquired the property;
22 (3) That it was not unlawfully used or possessed by him;
23 (4) In the event that it shall appear that the property was
24 unlawfully used or possessed by a person other than the
25 claimant, then the claimant shall show that the unlawful use or
26 possession was without his knowledge or consent.
27 * * *
28 Section 4. This act shall take effect in 60 days.
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