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J.A01017/00
2000 PA Super 295
COMMONWEALTH OF PENNSYLVANIA,
: IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant
::
v.
::
RAPHAEL SALER,
::
Appellee
: No. 2042 EDA 1999
Appeal from the Judgment of Sentence entered June 17, 1999
In the Court of Common Pleas of Montgomery County
Criminal No. 6672-98
BEFORE: FORD ELLIOTT, STEVENS and MONTEMURO, JJ.*
OPINION BY STEVENS, J.:
Filed: October 11, 2000
¶ 1
The Commonwealth appeals from a June 17, 1999 judgment of
sentence entered in the Court of Common Pleas of Montgomery County
following Appellee's conviction of two counts of unlawful delivery of cocaine.
The Commonwealth contends that the trial court committed an abuse of
discretion by failing to impose a three-year mandatory sentence for
Appellee's second conviction. We vacate the judgment of sentence and
remand for proceedings consistent with this decision.
¶ 2
The relevant facts and procedural history are as follows: On April 22,
1998, Appellee sold 6.78 grams of cocaine to an undercover agent of the
Montgomery County District Attorney's Office, Narcotics Enforcement Team.
Appellee was arrested for this offense on September 25, 1998. On August
28, 1998, however, prior to his arrest, Appellee had sold 6.8 grams of
cocaine to an undercover agent of the Narcotics Enforcement Team. He was
* Retired Justice assigned to the Superior Court.

J.A01017/00
arrested for the second offense on October 21, 1998, and, subsequently,
indicted for both offenses.

¶ 3
On April 22, 1999, Appellee pled guilty to the unlawful delivery of
cocaine which occurred on April 22, 1998, and, also, to the second delivery
which occurred on August 28, 1998. Prior to Appellee's sentencing, the
Commonwealth gave notice of its intention to seek, pursuant to 18 Pa.C.S.A.
§ 7508, the mandatory minimum sentence of one year in prison, a fine of
$5,000 for the first offense, and the enhanced mandatory minimum
sentence of three years in prison as well as a fine of $10,000 for the second
offense.
¶ 4
On June 17, 1999, the trial court, finding that 18 Pa.C.S.A. § 7508 was
inapplicable, sentenced Appellee to a mandatory minimum sentence of not
less than one year nor more than two years in prison with a three-year
consecutive probation and a fine of $5,000 for the April 22, 1998 offense,
and a concurrent sentence of not less than fourteen months nor more than
twenty-eight months with a three-year consecutive probation and a fine of
$5,000 for the August 28, 1998 offense. The Commonwealth filed a Motion
for Reconsideration of Sentence, which was denied by the court on July 2,
1999. The Commonwealth then filed a Statement of Matters Complained of
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J.A01017/00
on Appeal, pursuant to Pa.R.A.P. 1925(b), to which the trial court filed a
1925(a) opinion. 1 This timely appeal followed.
¶ 5
In the instant appeal, the Commonwealth contends that the trial court
committed a manifest abuse of discretion by failing to impose the enhanced
mandatory minimum sentence for the charge related to the August 28, 1998
delivery in that, Appellee had been "convicted" of the April 22, 1998 offense
at the time he was sentenced for this second offense. In seeking enhanced
sentencing, the Commonwealth relies on 18 Pa.C.S.A. § 7508 which
provides, in pertinent part, as follows:
(3) A person who is convicted of violating section 13(a)(14),
(30) or (37) of The Controlled Substance, Drug, Device and
Cosmetic Act . . . shall, upon conviction, be sentenced to a
mandatory minimum term of imprisonment and a fine as set
forth in this subsection:
(i) when the aggregate weight of the compound or
mixture containing the substance involved is at least
2.0 grams and less than ten grams; one year in prison

1 We note that, in declining to impose the enhanced sentencing statute, the
trial court relied on Commonwealth v Vasquez, 726 A.2d 396 (Pa. Super.
1999), appeal granted, ___ Pa. ___, 740 A.2d 233 (1999). We conclude
that Vasquez does not prevent the Commonwealth from seeking an
enhanced mandatory minimum in the case sub judice. In Vasquez, the
appellant delivered cocaine on June 16, 1997, and June 26, 1997, the day of
his arrest. The appellant pled guilty to both counts, the Commonwealth
sought the mandatory minimum, and the trial court imposed the mandatory
minimum. On appeal, this Court determined that since the appellant had a
single arrest, instead of two separate arrests, Section 7508 was inapplicable.
Specifically, this Court held that where an appellant has two arrests, the
arrests are consolidated, and the appellant pleads guilty to both at a single
hearing for the sake of judicial economy, it is immaterial whether he is
sentenced for the "first" occurring offense or at the same time. As such, we
conclude that Vasquez does not prevent the application of Section 7508 to
this case.
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J.A01017/00
and a fine of $5,000 or such larger amount as is
sufficient to exhaust the assets utilized in and the
proceeds from the illegal activity; however, if at the
time of the sentencing the defendant has been
convicted of another drug trafficking offense: three
years in prison and $10,000 or such larger amount as is
sufficient to exhaust the assets utilized in and the
proceeds from the illegal activity;
. . . .
(a.1) Previous conviction.  For purposes of this section,
it shall be deemed that a defendant has been convicted of
another drug trafficking offense when the defendant has been
convicted of another offense under section 13(a)(14), (30) or
37 of The Controlled Substance, Drug, Device and Cosmetic
Act, or of a similar offense under any statute of any state or
the United States, whether or not judgment of sentence has
been imposed concerning that offense.
¶ 6
The Commonwealth contends that the decision rendered by the
Supreme Court in Commonwealth v. Williams, 539 Pa. 249, 652 A.2d 283
(1994), is controlling in the instant case. We agree.
¶ 7
In Williams, the defendant committed a drug trafficking offense in
November, 1988, and a second such offense in May, 1991. He was
convicted by guilty plea of both offenses in October, 1991. As in the present
case, the Commonwealth sought application of the enhanced sentence
provision of 18 Pa.C.S.A. § 7508(a)(3)(i) regarding defendant's second
offense. The trial court refused to impose an enhanced minimum sentence
for the 1991 offense because that offense had been committed before the
defendant had been convicted of the 1988 offense. The Supreme Court
disagreed. The Court, in discussing the dictates of 18 Pa.C.S.A. §
7508(a)(3)(i), stated that "[t]he legislation in question contains no
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J.A01017/00
ambiguity at all. It says that `if at the time of sentencing the defendant has
been convicted of another drug trafficking offense,' he must receive an
enhanced sentence." 539 Pa. at 252-253, 652 A.2d at 285. The Court
noted that where there is no ambiguity in statutory language, there is no
room for interpretation. 539 Pa. at 253, 652 A.2d at 285 (citing 1 Pa.C.S. §
1921(b))2(citations omitted). The Court rejected the notion that a defendant
had to be convicted of a first drug offense before the commission of a
subsequent drug offense in order to trigger the enhanced sentencing statute
for the subsequent offense. Therefore, the Court held that the enhanced
sentence provision of 18 Pa.C.S.A. § 7508 (a)(3)(i) must be applied to
defendant's 1991 offense, since, at the time of sentencing, he had been
convicted of the drug trafficking offense committed in 1988.
¶ 8
In the present case, Appellee, similar to the defendant in Williams,
was convicted for the April 22, 1998 drug charge at the time he was
sentenced for the August 28, 1998 charge. The requirements of 18
Pa.C.S.A. § 7508(a)(3)(i) were met and, therefore, the enhanced sentence
provision was applicable to Appellee's second conviction.
¶ 9
For the foregoing reasons, we vacate Appellee's sentence and remand
for re-sentencing pursuant to 18 Pa.C.S.A. § 7508.

2 1 Pa.C.S.A. § 1921(b) provides the following: "When the words of a statute
are clear and free from all ambiguity, the letter of it is not to be disregarded
under the pretext of pursuing its spirit."
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