PRIOR PRINTER'S NO. 1502 PRINTER'S NO. 2444
No. 1298 Session of 1989
INTRODUCED BY THOMAS, MOEHLMANN, CALTAGIRONE, ALLEN, ANGSTADT,
ARGALL, BELARDI, BILLOW, BIRMELIN, BLAUM, BOYES, BUSH,
CAWLEY, CESSAR, CHADWICK, D. F. CLARK, CLYMER, COLAIZZO,
CORNELL, COWELL, DAVIES, DeLUCA, DEMPSEY, DIETTERICK,
DISTLER, DOMBROWSKI, DORR, FARGO, FARMER, FEE, FOX, GEIST,
GIGLIOTTI, GODSHALL, GRUPPO, HAGARTY, HALUSKA, HARPER,
HAYDEN, HAYES, HERMAN, HOWLETT, JACKSON, JADLOWIEC, JOHNSON,
KASUNIC, KENNEY, KOSINSKI, LaGROTTA, LEH, LLOYD, MAIALE,
MARKOSEK, MARSICO, MAYERNIK, McVERRY, MELIO, MERRY, MICOZZIE,
MORRIS, MRKONIC, NAHILL, NAILOR, PICCOLA, PITTS, TRICH,
PRESSMANN, RAYMOND, ROBBINS, ROBINSON, RYBAK, SAURMAN,
SCHEETZ, SEMMEL, SERAFINI, S. H. SMITH, D. W. SNYDER,
STABACK, STEIGHNER, STUBAN, TANGRETTI, E. Z. TAYLOR, TRELLO,
VAN HORNE, WAMBACH, WESTON, WOGAN, J. L. WRIGHT,
YANDRISEVITS, J. H. CLARK, PHILLIPS, G. SNYDER, LASHINGER,
BURD, O'BRIEN, LANGTRY, BATTISTO, F. TAYLOR, NOYE, FLICK,
BARLEY AND STISH, APRIL 25, 1989
AS REPORTED FROM COMMITTEE ON JUDICIARY, HOUSE OF
REPRESENTATIVES, AS AMENDED, SEPTEMBER 27, 1989
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 and penalties; providing for recidivism
12 penalties; and further providing for pretrial disposition of
13 certain cases.
14 The General Assembly of the Commonwealth of Pennsylvania
15 hereby enacts as follows:
1 Section 1. Section 13(a) of the act of April 14, 1972
2 (P.L.233, No.64), known as The Controlled Substance, Drug,
3 Device and Cosmetic Act, is amended by adding clauses and the
4 section is amended by adding subsections to read:
5 Section 13. Prohibited Acts; Penalties.--(a) The following
6 acts and the causing thereof within the Commonwealth are hereby
7 prohibited:
8 * * *
9 (37) The use of any communication facility in committing,
10 causing or facilitating the commission of any act constituting a
11 felony under this act. Each separate use of a communication
12 facility shall be a separate offense under this clause. For the
13 purposes of this clause, the term "communication facility" means
14 public and private instrumentalities used or useful in the
15 transmission of writing, signs, data signals, pictures or sound
16 and includes mail, telephone, wire, radio and all other means of
17 communications.
18 (38) The engaging in a continuing criminal enterprise. For
19 purposes of this clause, a person is engaged in a continuing
20 criminal enterprise if all of the following apply:
21 (i) The person violates any provision of this act classified
22 as a felony.
23 (ii) The violation is a part of a continuing series of
24 violations of this act:
25 (A) which are undertaken by the person in concert with three
26 or more other persons with respect to whom the person occupies a
27 position of organizer, financier or supervisory or any other
28 position of management; and
29 (B) from which the person obtains substantial income or
30 resources.
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1 A violation of this clause constitutes an offense separate and
2 distinct from the offenses which constitute the continuing
3 series of violations of this act that must be proven to
4 establish a violation of this clause; and separate sentences,
5 either concurrent or consecutive, may be imposed for a violation
6 of this clause and for the separate offenses which constitute
7 the continuing series of violations of the act.
8 (39) The knowing or intentional keeping or maintaining of
9 any store, shop, warehouse, dwelling, building, vehicle, boat,
10 aircraft or other structure or place which a person knows is
11 resorted to for the purpose of possessing, keeping,
12 transporting, distributing or manufacturing controlled
13 substances in violation of this act.
14 (40) Except as authorized by this act, the managing or
15 controlling of any building, room or enclosure, as an owner,
16 lessee, agent, employee or mortgagee, and the knowing and <--
17 intentional renting, leasing or making available for use, with
18 or without compensation, the building, room, or enclosure for
19 the purpose of unlawfully manufacturing a controlled substance.
20 (41) Except as authorized by this act, the possession of any
21 of the following combinations of precursors of controlled
22 substances with intent to manufacture a controlled substance:
23 (i) Urea and malonic acid or its derivatives.
24 (ii) Ergot or an ergot derivative and hydrazine or
25 diethylamine or demethylformamide or diethylamide.
26 (iii) Benzaldehyde and nithroethane.
27 (iv) Phenylacetone and hydroxylamine or ammonia or formamide
28 or methylamine or methylformamide.
29 (v) Piperidine and cyclohexanone (or piperidine cyclohexene
30 carbonitrile) and bromobenzene and magnesium.
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1 (vi) 2-methyl-benzoxazone and 0-toluidine or anthranilic
2 acid or its N-acetyl derivative and 0-toluidine.
3 (vii) Any two or more chemicals necessary to synthesize a
4 controlled substance.
5 * * *
6 (m) Notwithstanding any other provision of this or any other
7 act to the contrary, the following mandatory minimum fines shall
8 be imposed upon any person who violates the provisions of clause
9 (16) of subsection (a):
10 (1) Upon the first conviction, five hundred dollars ($500).
11 (2) Upon conviction for another violation subject to
12 sentencing under this subsection, three thousand dollars
13 ($3,000).
14 There shall be no authority in any court to impose on an
15 offender to which this subsection is applicable a lesser fine
16 than provided for in this subsection. Nothing in this subsection
17 shall prevent the sentencing court from imposing a fine greater
18 than provided in this subsection. If a sentencing court refuses
19 to apply this subsection where applicable, the Commonwealth
20 shall have the right to appellate review of the action of the
21 sentencing court. The appellate court shall vacate the sentence
22 and remand the case to the sentencing court for imposition of
23 sentence in accordance with this subsection if it finds that the
24 sentence was imposed in violation of this subsection.
25 (n) Any person who violates clause (37) of subsection (a) is
26 guilty of a felony and upon conviction thereof shall be
27 sentenced to imprisonment not exceeding seven years or to pay a
28 fine not exceeding fifteen thousand dollars ($15,000), or both.
29 (o) Any person who violates clause (38) of subsection (a) is
30 guilty of a felony and upon conviction thereof shall be
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1 sentenced to imprisonment not exceeding forty years or to pay a
2 fine not exceeding one hundred thousand dollars ($100,000), or
3 both, and shall forfeit to the Commonwealth:
4 (1) The proceeds obtained by the person in, resulting from
5 or derived from the enterprise.
6 (2) Any of the person's interest in, claim against or
7 property or contractual rights of any kind affording a source of
8 influence over the enterprise which the person established,
9 operated, controlled or conducted in violation of clause (38) of
10 subsection (a).
11 (3) An amount equal to the gain the person has acquired,
12 derived or maintained as a result of violations of clause (38)
13 of subsection (a).
14 (p) Except as provided in subsection (q), any person who
15 violates clause (39) of subsection (a) is guilty of a felony and
16 upon conviction thereof shall be sentenced to imprisonment not
17 exceeding seven years or to pay a fine not exceeding ten
18 thousand dollars ($10,000), or both.
19 (q) Any person who violates clause (40) of subsection (a) or
20 who violates clause (39) of subsection (a) where the structure
21 or place kept or maintained is fortified is guilty of a felony
22 and upon conviction thereof shall be sentenced to imprisonment
23 not exceeding ten years or to pay a fine not exceeding fifteen
24 thousand dollars ($15,000), or both.
25 (r) Any person who violates clause (40) of subsection (a)
26 where the controlled substance manufacturing or related activity
27 creates a substantial risk of harm to human life is guilty of a
28 felony and upon conviction thereof shall be sentenced to
29 imprisonment not exceeding twenty years or to pay a fine not
30 exceeding one hundred thousand dollars ($100,000), or both.
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1 (s) Any person who violates clause (41) of subsection (a) is
2 guilty of a felony and upon conviction thereof shall be
3 sentenced to imprisonment of not more than fifteen years or to
4 pay a fine not exceeding fifty thousand dollars ($50,000), or
5 both.
6 Section 2. Section 15 of the act, amended October 26, 1972
7 (P.L.1048, No.263), is amended to read:
8 Section 15. Second [or Subsequent] Offense.--(a) Any person
9 convicted of a second [or subsequent] offense under clause (30)
10 of subsection (a) of section 13 of this act or of a similar
11 offense under any statute of the United States or of any state
12 may be imprisoned for a term up to twice the term otherwise
13 authorized, fined an amount up to twice that otherwise
14 authorized, or both.
15 (b) For purposes of this section, an offense is considered a
16 second [or subsequent] offense, if, prior to the commission of
17 the second offense, the offender has at any time been convicted
18 under clause (30) of subsection (a) of section 13 of this act or
19 of a similar offense under any statute of the United States or
20 of any state relating to controlled substances.
21 Section 3. The act is amended by adding sections to read:
22 Section 15.1. Second or Subsequent Offense of Continuing
23 Criminal Enterprise.--(a) Any person convicted of a second or
24 subsequent offense under clause (38) of subsection (a) of
25 section 13 of this act or of a similar offense under any statute
26 of the United States or of any state shall be sentenced to life
27 imprisonment and fined an amount up to twice that otherwise
28 authorized.
29 (b) For purposes of this section, an offense is considered a
30 second or subsequent offense, if, prior to the commission of the
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1 second offense, the offender has at any time been convicted
2 under clause (38) of subsection (a) of section (13) of this act
3 or of a similar offense under any statute of the United States
4 or of any state relating to controlled substances.
5 Section 15.2. Third or Subsequent Offense.--(a) Any person
6 convicted of a third or subsequent offense under clause (30) of
7 subsection (a) of section 13 of this act or of a similar offense
8 under any statute of the United States or of any state shall be
9 sentenced to life imprisonment and fined an amount up to three
10 times that otherwise authorized.
11 (b) For purposes of this section, an offense is considered a
12 third or subsequent offense, if prior to the commission of the
13 third or subsequent offense, the offender has at any time twice
14 been convicted under clause (30) of subsection (a) of section 13
15 of this act or of a similar offense under any statute of the
16 United States or of any state relating to controlled substances.
17 Section 4. Sections 17 and 18 of the act, amended October
18 26, 1972 (P.L.1048, No.263), are amended to read:
19 Section 17. Probation Without Verdict.--A person may be
20 entitled to probation without verdict under the following
21 circumstances:
22 (1) A person who has not previously been convicted of an
23 offense under this act or under a similar act of the United
24 States, or any other state, is eligible for probation without
25 verdict if he pleads nolo contendere or guilty to, or is found
26 guilty of, any nonviolent offense under this act. The court may,
27 without entering a judgment, and with the consent of such person
28 and the prosecuting attorney, defer further proceedings and
29 place him on probation for a specific time period not to exceed
30 the maximum for the offense upon such reasonable terms and
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1 conditions as it may require.
2 Probation without verdict shall not be available if the
3 prosecuting attorney does not consent and shall not be available
4 to any person who is charged with violating clause (30) of
5 subsection (a) of section 13 of this act and who is not himself
6 a drug abuser and who does not prove the fact of such drug abuse
7 to the satisfaction of the court.
8 (2) Upon violation of a term or condition of probation, the
9 court may enter a judgment and proceed as in any criminal case,
10 or may continue the probation without verdict.
11 (3) Upon fulfillment of the terms and conditions of
12 probation, the court shall discharge such person and dismiss the
13 proceedings against him. Discharge and dismissal shall be
14 without adjudication of guilt and shall not constitute a
15 conviction for any purpose whatever, including the penalties
16 imposed for second or subsequent convictions: Provided, That
17 probation without verdict shall be available to any person only
18 once: And further provided, That notwithstanding any other
19 provision of this act, the prosecuting attorney or the court,
20 and the council shall keep a list of those persons placed on
21 probation without verdict, which list may only be used to
22 determine the eligibility of persons for probation without
23 verdict and the names on such lists may be used for no other
24 purpose whatsoever.
25 Section 18. Disposition in Lieu of Trial or Criminal
26 Punishment.--(a) If a person charged with a nonviolent crime
27 claims to be drug dependent or a drug abuser and prior to trial
28 he requests appropriate treatment, including but not limited to,
29 admission or commitment under the Mental Health and Mental
30 Retardation Act of 1966 in lieu of criminal prosecution, a
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1 physician experienced or trained in the field of drug dependency
2 or drug abuse shall be appointed by the court to examine, if
3 necessary, and to review the accused's record and advise the
4 [government] prosecuting attorney, the accused and the court in
5 writing setting forth that for the treatment and rehabilitation
6 of the accused it would be preferable for the criminal charges
7 to be held in abeyance or withdrawn in order to institute
8 treatment for drug dependence, or for the criminal charges to be
9 prosecuted. The [government] prosecuting attorney shall exercise
10 his discretion whether or not to accept the physician's
11 recommendation.
12 (b) In the event that he does not accept the physician's
13 recommendation [he shall state in writing and furnish the
14 defendant a copy of his decision and the reasons therefor],
15 disposition under this section shall not be available; and the
16 case shall be listed for trial or other disposition.
17 (c) If the [government] prosecuting attorney accepts the
18 physician's advice to hold in abeyance, he shall arrange for a
19 hearing before the appropriate court to hold in abeyance the
20 criminal prosecution. The court, upon its approval, shall
21 proceed to make appropriate arrangements for treatment.
22 (d) The [government] prosecuting attorney, upon his own
23 application, may institute proceedings for appropriate
24 treatment, including but not limited to, commitment pursuant to
25 the Mental Health and Mental Retardation Act of 1966.
26 (e) A criminal charge may be held in beyance pursuant to
27 this section for no longer than the lesser of either (i) the
28 appropriate statute of limitations or (ii) the maximum term that
29 could be imposed for the offense charged. At the expiration of
30 such period, the criminal charge shall be automatically
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1 dismissed. A criminal charge may not be prosecuted except by
2 order of court so long as the medical director of the treatment
3 facility certifies that the accused is cooperating in a
4 prescribed treatment program and is benefiting from treatment.
5 (f) If, after conviction, the defendant requests probation
6 with treatment or civil commitment for treatment in lieu of
7 criminal punishment, the court may appoint a qualified physician
8 to advise the court in writing whether it would be preferable
9 for the purposes of treatment and rehabilitation for him to
10 receive a suspended sentence and probation on the condition that
11 he undergo education and treatment for drug abuse and drug
12 dependency, or to be committed pursuant to the Mental Health and
13 Mental Retardation Act of 1966 for treatment in lieu of criminal
14 punishment, or to receive criminal incarceration. A copy of the
15 physician's report shall be furnished the court, the defendant
16 and the [government] prosecuting attorney. The court shall
17 exercise its discretion whether to accept the physician's
18 advice.
19 (g) Disposition in lieu of trial as provided in this section
20 shall be available to any person only once.
21 Section 5. This act shall take effect immediately.
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