Commonwealth v. Myers

CAPPY, Justice,

dissenting.

Because I cannot agree that it is necessary to adopt the “clearly erroneous” standard of review for appellate review of factual determinations of the sentencing court made pursuant to 18 Pa.C.S. §7508, I must respectfully dissent. Also, I cannot agree that the Superior Court in the instant matter improperly substituted its judgment of facts for that of the sentencing court.

As noted by the Majority, we granted allocatur to determine whether the Superior Court in the instant matter applied the proper standard of review to the sentencing court’s determination. Finding that this court has yet to define the appropriate standard of review in cases involving the mandatory provisions of Section 7508, the Majority, in reliance upon a decision of the *582Third Circuit in United States v. McDowell, 888 F.2d 285 (3d Cir.1989), adopts the “clearly erroneous” standard of review as the appropriate standard. McDowell involves the imposition of sentence pursuant to the Federal Sentencing Guidelines wherein the Congress, in drafting the enabling legislation for those Guidelines, explicitly set forth that the findings of fact of the district court shall be accepted on appeal unless those findings are “clearly erroneous.” However, I see no need to adopt such a standard here nor do I think the Majority, in its application of the announced standard to the facts at issue, truly adopts such a standard. Rather, the Majority applied nothing more than the standard traditionally employed to review any factual determinations; that an appellate court is bound by the trial court’s findings so long as they are supported by the record. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545, 550 (Pa.1976).

The Majority concludes that the Superior Court here erroneously substituted its own determination of the facts for that of the sentencing court.1 Essentially, what the Majority finds is that the trial court found the weight of the marijuana to be less than 10 pounds and that such finding was not subject to reversal by the Superior Court on appeal. According to the Majority, the Superior Court’s determination that the facts established that the marijuana weighed in excess of ten pounds, constituted an improper reassessment of the facts. However, in so holding, the Majority not only overlooks critical testimony offered by Ms. Beshore-Strohm, the forensic scientist who conducted the police lab testing of this marijuana, but also misconstrues what both the trial court and the Superior Court truly held.

As the Majority so notes, the testimony of Ms. Beshore-Strohm was the only evidence presented regarding the weight of the marijuana. In order to set forth my position, it is necessary to review all of her testimony respecting the weighing process actually conducted here.

*583Ms. Beshore-Strohm testified that the drugs at issue were weighed on May 20, 1994. (N.T. 3/27/95 p. 21). The drugs were weighed on a Metier top loading balance which had been purchased by the police lab sometime earlier in 1994. (N.T. 3/27/95 pp. 23, 36). She testified that this balance was calibrated by Metier prior to it being sent to the lab. (N.T. 3/27/95 p. 37). She testified that a representative from Metier would check the lab’s balances on a yearly basis. (N.T. 3/27/95 pp. 23, 35). While on cross examination it was elicited that the weighing in question took place prior to Metier having checked the calibration, her testimony also made clear that this was so because this particular weighing occurred within a few months of the machine’s purchase at a time when Metier was not yet scheduled to check the calibration. (N.T. 3/27/95 pp. 23-24; 35-37). She testified further that this particular machine was designed with an internal calibration mechanism which required that one simply push a button prior to each weighing whereupon the machine would self-calibrate. She explained that a known weight is not placed on this type of balance to determine if it is calibrated correctly. She testified further that she performed this self-calibration function immediately prior to her having weighed this particular marijuana. (N.T. 3/27/95 p. 35-36). When asked to explain in more detail the calibration mechanics of this machine, she testified that there are two distinct types of balances, one that is externally calibrated by placing a weight thereon; the other being one such as that used here which has all the numbers factored into the machine and which calibrates itself when that function is executed. Immediately thereafter, she was asked whether she had, in this instance, put a known weight on the balance prior to weighing this marijuana to which she responded “no.” (N.T. 3/27/95 37-38). However, as noted above, she had just testified that on a balance such as the one used here, it was not necessary to place a known weight on the scale to determine whether it is correctly calibrated.

At the time of sentencing, the sole argument of defense counsel respecting the weight was:

*584There was testimony concerning the weight scale that was used. I do not believe that it was calibrated, but — and the possibility, also, of seeds and stems which were — which were included in the marijuana, of which case there was no testimony that the seeds were actually capable of germination. I would request that if Your Honor would find that, that it would be less than — you could arrive at an amount less than the ten pounds.

(N.T. 6/20/98 p. 4). The Commonwealth responded that the testimony of Ms. Beshore-Strohm established that the marijuana weighed in excess of ten pounds. The trial court then stated:

Mrs. Myers, a jury found you guilty in the case. I have no question about that whatsoever, nor do I have any doubts about your conviction. You are forty-three years old, and you evidently have some serious health problems at this time. For that, I sympathize with you. I don’t sympathize with you when you say you didn’t know anything about this whole marijuana proposition. The jury found otherwise. However, I do believe that your involvement in it is to something of a lesser extent than your son and your husband.
The D.A. is asking for a mandatory sentence because the weight of the marijuana just edges the scale over ten pounds. I’m going to give you the benefit of the doubt on that and whatever happens happens.

(N.T. 6/20/95 pp. 10-11). The trial court then sentenced Appellant consistent with possession of only two to ten pounds thus rejecting the mandatory sentence sought by the Commonwealth. In an opinion filed pursuant to Pa.R.A.P.1925, the trial court noted that it found the evidence regarding weight to be “ambiguous.” In support of that finding, the trial court stated:

Although Ms. Beshore-Strohm testified that the top-loading balance was calibrated by the manufacturer on a yearly basis, she also testified that she did not verify the accuracy of the scale. Additionally, we note that neither party presented additional evidence at the sentencing hearing to clarify this ambiguity. In light of this, and the *585potential for discrepancies in the weighing process, we determined by a preponderance of the evidence that the mandatory minimum sentence under 18 Pa.C.S. §7508(a)(l)(ii) was not applicable.

(tr. ct. op. at pp. 6-7).2 The Superior Court reversed, concluding that record did not support the trial court’s finding that the marijuana weighed less than ten pounds.

In my opinion, the Majority’s determination to reverse the Superior Court’s decision is in error. First, I believe the Majority misinterprets the Superior Court’s decision when the Majority, at page 653, finds that the Superior Court improperly concluded that the weight of the marijuana was an “adjudicated fact” of the jury. A fair reading of the entire Superior Court opinion reveals that the “adjudicated fact” to which it refers is the jury’s finding that Appellant possessed the package of marijuana; not that the weight of the marijuana was adjudicated by the jury. On this point, I interpret the Superi- or Court as noting that since the jury convicted Appellant of possessing this precise package of marijuana, and since the package was not capable of apportionment, and since, as already determined by that Court, the package was later determined by a preponderance of the evidence to weigh in excess of 10 pounds, the trial court, in deciding to sentence Appellant consistent with having possessed less than 10 pounds, in effect, improperly redetermined the adjudicated fact that she possessed the package.3

Moreover, I cannot agree with the Majority’s conclusion that the Superior Court re-determined credibility because, as noted above, the Superior Court concluded only that the *586sentencing court’s finding regarding the weight of the marijuana was not supported by the record. While the Majority recognizes this to be the appropriate standard of review, it seemingly disregards it by concluding, in essence, that a trial court’s findings are absolute. I submit that a review of the comments uttered by the court at sentencing supports the Superior Court’s conclusions insofar as they evidence a deliberate attempt to sentence Appellant to a more lenient sentence, not because the evidence failed to establish that the marijuana weighed at least 10 pounds, but rather, solely because the court felt she deserved a less severe sentence than her husband and son. Such discretionary sentencing is explicitly precluded by the mandatory sentencing scheme of section 7508.

A careful reading of the Superior Court decision reveals that rather than applying an erroneous standard of review, that court concluded that the evidence submitted at sentencing met the preponderance of the evidence standard set forth in §7508(b). In so concluding, the Superior Court simply focused upon the entirety of the testimony; it did not impose its own assessment of credibility as suggested by the Majority.

For all these reasons, I dissent.

Justice CASTILLE joins this Dissenting Opinion.

. The Majority later construes the Superior Court's decision as being an improper challenge to the sentencing court's "credibility determinations” respecting the testimony of Ms. Beshore-Strohm.

. Pa.C.S. §7508 provides that the court shall determine by a preponderance of the evidence if the mandatory minimum sentence applies.

. I point out as well that I disagree with the Majority's initial conclusion that the Superior Court improperly applied the manifest abuse of discretion standard. As the Majority so notes, “abuse of discretion” simply means that the appellate court is of the opinion that the trial court committed an error of law. In this instance, the Superior Court believed that the record evidence established that the Commonwealth had met its burden of proving by a preponderance of the evidence that the marijuana weighed in excess of 10 pounds and that the trial court, therefore, committed an error of law.