*1 Mohney, owner” Mid-Atlantic. See su-
pra at 686.
¶ 12 Bаsed upon foregoing, we hold the trial court properly Appellant’s denied non-suit,
motion to compulsory remove the produce because failed to suffi- qualified cient evidence that Appellee as an “employer” According- under WPCL. ly, affirm judgment we entered Westmoreland County Court of Common
Pleas in favor of Appellee. Judgment affirmed.
COMMONWEALTH OF
PENNSYLVANIA
Appellee Appellant. Michael BRICE Superior Pennsylvania. Court of
Argued May 2004. July Filed *2 city in the of Chester. At
Jeffrey Streets incident, time of the Officer Frеeman officer, year a 12 veteran who had unit for three in the narcotics worked years.1 that the corner under He testified a high drug was known as surveillance area, unit had and that his narcotics crime 30 arrests at that loca- participated over tion. p.m., Officer approximately At 10:10 a approach a female
Freeman observed male, Appellant’s identified co- later Berry, and converse cоnspirator Antwon Berry and briefly with him. then turned something to who was Appellant, shouted in front of 2107 Third Street. sitting West walked towards each The two men then other, spoke briefly, proceeded north and parked Ford Jeffrey on Street to silver opened the driver’s Appellant Taurus. sideways in the door and sat driver’s side car, seat, Berry while remained outside standing open in the frame of the door. Media, for Malloy, appellant. Michaеl J. observed reach Officer Freeman Hutton, center console and remove clear P. District Michelle Assistant plastic bag numerous Attorney, Media, sandwich ap- for Commonwealth training on his and white items. Based pellee. Freeman determined experience, Officer STEVENS, BENDER Before: cocaine. bag packaged that the contained *, JJ. MONTEMURO bag, then reached grabbed items several small white MONTEMURO, BY J.: OPINION Berry Berry. more to gavе one or judgment from the appeal 1 This is female, and the two met waved to the 15, 2008, in the May of sentence entered and the the corner somewhere between Pleas, of Common County Delaware Court the female one Berry car. handed of, following Appellant’s bench conviction it, items, and, briefly inspecting after she alia, two counts of inter currency. Berry paper When handed cocaine. affirm. intent deliver We examination, up the item female held it 15, 2001, could see that was August Officer Freeman evening 2 On the containing white sub- plastic bag small Freeman of the Chester Officer Marlowe training experi- Based on his conducting stance. County Department was Police that the ence, Officer Freeman determined corner of Third and surveillance * Superior accepted assigned drug investigations, Court. court Retired Justice (N.T. Suppres- expert as an fíeld. him experi- After described Officer Freeman 1/23/03, Hearing, sion area of training he received in the ence and cocaine, car, bag just ny contained had he agreed. he them the vehicle, witnessed a Upon reaching transaction. Blair Officer observed, in plain view in the armrest ¶ 4 *3 waiting the female When entered a door, glassine bag a white driver’s began away, van and to drive Officer Free- white, contаining a powdery substance. man back-up instructed his team to stop training experience, Based his Offi- on and the van and detain the passenger. female bag cer that Blair believed contained transaction, During the Officer Freeman quarter Appel- about of ounce cocaine.3 given back-up had play officers “a placed lant was under arrest. then (N.T. play” of the events. Suppression 28). 1/23/03, Hearing, at While thе back- ¶ 6 Appellant The officers asked for his up pursued van, team Officer Freeman vehicle, consent to search the he re- but Berry, maintained surveillance on who en- Thereafter, fused. the officers secured the tered the at residence 2107 West Third warrant, applied vehicle and a search Street, Appellant, who, and on after re- signed which and was executed the follow- placing bag sandwich the center alia, uncovered, inter ing day. The search Taurus, of console began walking silver numerous of packages cocaine and new west away on Third Street from the area. plastic bags. A of tags search the vehicle’s Officer Freeman back-up instructed the registered revealed that car to was unit disregard to and stop Appel- van Appellant, registration but was lant, as the Appellant officer fearеd would suspended because the insurance had been area, leave the and he Appellant believed cancelled. had drugs more in the car. ¶ Appellant initially charged 7 with was ¶ 5 Officer Otis Blair testified that he possession cocaine, possession of in- with and Wately2 Officer R. back-up were the cocaine, possession tent to drug deliver team for night Officer Freeman on the paraphernalia, conspir- three and counts of question. prior Officer Blair testified that acy following August arrest on 15th. his to stop Appellant, their Officer Freeman executed, After the search warrant was relayed had very specific details of events Appellant charged was the same they as transpired, complete as well as drugs parapher- crimes based on the and descriptions of the individuals involved. nalia Ap- recovered in thе vehicle search. The officers sitting observed Appellant on pellant motion, pretrial filed an omnibus steps private residence with including suppress challenging motion the officers knew he no had connection. stop subsequent both initial and the Wately approached Officers Blair and Ap- search Following day of his vehicle. a two pellant, police identified themselves as offi- suppression hearing, his motion de- cers, they and informed him that were nied. conducting drug investigation. They 15, 2003, if April then asked him 8 he owned the silver On waived right jury proceeded Taurus. When his to a to a refused re- and spond, on accompa- present- the officers asked him to bench trial based the evidence "Whately” appears working 2. This officer's name cocaine while undercover. After a Opinion, "Watley” trial court in the detailing colloquy background his trаin- transcript. spelling We have used the as it ing, accepted the trial court Officer Blair as appears in the Affidavit of Probable Cause. expert drugs in the field of inves- (N.T. tigations. Suppression Hearing, experience years 3. Officer Blair's included 13 1/24/03, officer, police purchases as a over legal if the conclusions hearing. may The trial reverse suppression ed at the guilty all are error.' a verdict of judge returned 15th, May Appellant was sen- charges. On Bomar, 573 Pa. of 2 to tenced to two concurrent terms (2003). Moreover, we must A.2d years’ for the imprisonment credibility to the determinations defer convictions, two con- with intent deliver opportunity had the judge the trial who imprison- of 6 to 23 months’ current terms testimony. the witnesses’ observe convic- conspiracy/delivery ment for the tions, concurrent terms of and two *4 ¶ although the argues that Appellant of рossession for the probation months’ stop to suspicion officers had reasonable convictions, to probation the paraphernalia him detention esca- initially, and detain the thus, term;4 prison to the run consecutive an equivalent the functional of lated into was 2 to aggregate sentence Appellant’s cause probable without sufficient arrest year one years’ imprisonment followed Appеllant back the officers escorted when two-year prison probation. The two terms contends Appellant to silver Taurus. the im- mandatory minimum sentences were to him questions that the officers’ once to posed pursuant 18 Pa.C.S.A. suggest that he was nothing revealed Appellant filed Drug-free school zones. narcotics, free selling he should have been motion, timely post sentence which was “detained, Rather, possi- he was leave. by Order dated denied the trial court bly finally transported handcuffed and appeal follows. September 2003. This the of the vehicle in after question scene ap- issues on raises two investigation had concluded.” intial First, challenges he the trial court’s peal. 15). Accordingly, Ap- at Brief (Appellant’s Second, denial of his motion. suppression contends, all narcotics seized pellant of the imposition of the сhallenges he the court’s “fruits suppressed should have been provision minimum at sentenc- mandatory (Id. tree.” poisonous below, ing. forth we For reasons set however, concluded, 12 The trial court affirm. probable cause arrest that ¶ 10 of review Our standard witnessed after Officer Freeman existed pretrial considering the denial of when drug transac- participation in a Appellant’s suppress well settled: motion to is en agree. This Court’s recent tion. We v. Dun- decision in Commonwealth ... is limited to deter- banc ... review Our par- is lap, (Pa.Super.2004), A.2d 674 findings are whether the factual mining Dunlap, an officer ticularly instructive. and whether by the record supported working plainclothes his were partner drawn from those and conclusions legal high drug crime corner surveillance on a the prosecution facts are correct. Since ap- court, The officer observed Philadelphia. we suppression prevailed in man, engage in brief approach pellant of the may consider conversation, money in re- exchange and- much of the evidence and so prosecution ” “ at 675. objects.’ for turn ‘small remains uncontradict- the defense as for scene, the offi- appellant left the rec- After the in the when read context ed stopped who a third officer sup- cеrs radioed the record as a whole. Where ord packets and recovered three appellant findings of the the factual ports person. cocaine from his court, of crack by those facts we are bound tencing purposes. merged for sen- the other convictions All of
HI (30) 13(a)(14) In finding that or ... the officers had tion section probable stop ap- Substance, cause to and arrest the Device Drag, Cоntrolled Dunlap pellant, Court found Act, several shall, delivery if Cosmetic (1) significant: facts the transaction was or with intent to deliver of experienced police witnessed officer the controlled substance occurred within who had been drug on the strike force 1,000 property feet of the real on which (2) months; officer, himself, nine had public, private parochial is located a or participated in 15 to 20 arrests that college university school or or within (3) particular area; concluded, the officer feet of real on is property on training experience, based his located a recreation center or play- transaction; a drug he had witnessed bus, ground or a school be sentenced (4) took place the transaction on a corner ato minimum of at sentence least two known high well for a incidenсe years of total ... confinement See Here, Id. at 675-77. crimes. an even (b) Proof sentencing. provision —The stronger argument probable favor *5 of this section shall not be element of cause exists. Officer Freeman testified crime. of applicability the Notice the of that he had in worked the unit narcotics this section to the defendant shall not be years, for three in participated over 30 conviction, required prior to but reason- drag location, arrests at the same in- able notice of the Commonwealth’s high was known as a drug trafficking area. to proceed tention under this section Moreover, in unlike Dunlap, Officer Free- provided shall be after conviction and clearly man identified plastic bag Ap- the sentencing. applicability before of The pellant from removed the car as this section shall be sen- determined at packets cocaine; of question there was no tencing. The court shall evi- consider that he an exchange witnessed of cocaine presented trial, at dence shall the afford money. Thus, for agree because we Commonwealth and defendant an the the trial court that the possessed officers opportunity present necessary to addi- probable cause to arrest when tional shаll determine a he first stopped, was whether or not he preponderance of the evidence if this placed “custody” in when he was is applicable. section transported back to the vehicle is irrele- 6317(a)-(b) § vant. Accordingly, Appellant’s (emphasis 18 Pa.C.S.A. add- first issue ed). fails.
¶ Next, sentencing, 14 15 At the Commonwealth contends that § argued Ap- court in that 6317 was sentencing applicable erred a him to mandatory pellant’s with intent to years’ minimum two deliver imprison convictions because took pursuant § ment to 18 the transaction Pa.C.S.A. 6317.5 place within or playground, The in 162.5 feet of a provides, pertinent statute part: specifically, more court. The basketball § Drug-free 6317. school zones that, called, parties stipulated if Officer (a) that, person years General rule.—A of have Freeman would testified at incident, or age any older is of who сonvicted time the basketball court court this Commonwealth of a resi- frequently neighborhood viola- was used Drummond, challenge application 5. We note that a A.2d wealth mandatory sentencing provision impli of a (Pa.Super.2001). legality cates sentence. Common adults, at concluded that statute dents, 1235. We children and for recre- both (N.T. municipal play purposes. Sentencing, was not limited school ational 5-6). addition, areas, rather, children in 5/15/03, “protects our at the Common- but picture they routinely play.” Id. places into evidence a where wealth entered the basketball court. 1237. here, although not testi- at issue Although stipulated he to this The area an area certainly chal- is where
mony sentencing, Appellant well-equipped, now “routinely finding neighborhood the area in children lenges the court’s that explains in play.” As “playground” purposes is a question brief, argues he that Specifically, its admitted the Common- photograph crime, high a known area was [T]his than a no more ‘basketball “depicts wealth One of the few outlets high area. pole in lot.... To set’ nailed to a a vacant neighbor- types for children these defini- such a structure to meet the permit Common- is hoods basketball. every playground would turn street tion of presented evidence wealth a milk carton is attached to tele- where consis- neighborhood children and adults ’ ‘playground.” (Appel- into phone pole sug- It cannot be tently used the court. court, howev- Brief at The trial lant’s intended Legislature gested that er, as a qualified that the area concluded protect playing well- children by the stat- “playground” contemplated and courts areas preserved playground *6 ute. agree. We freshly paint- fiberglass with boards lines. ed
¶
is not
“playground”
term
de-
17 The
In
in the statute.
fined
(Commonwealth’s
agree.
Brief at
We
(Pa.Super.2000),
H3 fair application order to this be equal play- ensure area would considered law, necessary of the it is find limita- ground by general definitions of the tions for such broad definitions ade- word.6 Id. at 1235. evidentiary quate support great- to sustain ¶5 present case, there is some terms of imprisonment. er indicating evidence in the record that the ¶2 inappropriate This concern for the question playground. area was used as imposition sentencing of enhanced parties agreed stipulated Both to the testi- shared this Court in Commonwealth v. mony of Officer Freeman that the basket- Campbell, A.2d (Pa.Super.2000). place ball court awas used children and date, The case to which has addressed adults alike. There was no evidence sub- interpreting the issue of the statute before by Appellant mitted which would suggest us, Campbell discusses need for nar- these statements were inaccurate. row in analyzing statutory definitions crim- Thе picture the area submitted into penalties, stating inal “[pjenal statutes depicted empty paved rectan- strictly
must be construed.” at 1236 gular shape lot in the of a basketball court Runion, (citing Commonwealth v. with a pole hoop end. either Pa.Super. 628 A.2d 905-906 paved lot by grass is surrounded and locat- (1993)). ed in the of a neighbor- middle residential In defining “playground,” term hood. majority Campbell cites the propo- specifications these sition that the statute in Given and no question “protects use, places contrary our children in the they where rou- indications to its the trial tinely play.” Id. 1237. court legisla- While the and this Court concluded that have tive intent that fostered playground this statute was this area is a under the stat- surely meant to create a habitat safe void necessarily disagree ute. While I do not sales, illegal statutory lan- conclusion, I this am about concerned guage given specific must be context for interpretation statutory broad *7 application. its The mere presence of chil- in language. Appellant argues his brief give dren alone cannot to a “play- rise permit “[t]o such structure to meet the ground” absent some additional indications playground every definition of would turn a designated facility for their recreation- street milk where a carton is attached to a ’ al use. telephone into a pole ‘playground.” Ap- pellant’s at 20. Brief This concern must 4 In Campbell, area described was be development met sufficient of the unquestionably playground designed for record to ensure that the use the children of a privately-owned impose cannot use this statute to addition- apartment complex. Id. 1233. Contain- ing sets, court, al no swing sentencing where there is real con- picnic basketball tables, boards, sliding play- cern for nor of a and a metal climb- children ing apparatus, case, ground. there is little doubt that present additional majority opinion, Campbell Playground As cited in the has also been defined as "[a]n following dictionary used the definitions to outdoor set aside recreation and area for "playground." characterize the term seesaws, play; especially, onе "playground The term has...been defined swings, and the like.” The American Heri- piece usu[ally] as "a land used for tage Dictionary English Language of the equipped with facilities for recreation (7th Ed. especially] by children.” Webster’s New Id. at 1235. (8th ed.1981). Collegiate Dictionary 874 neighbor-
testimony by of the residents while children photographs hood and taken space help are would present argument strengthen Commonwealth’s act did in fact and ensure that property “within 250 feet real is a recreation center located 6317(a). 18 Pa.C.S. playground....” of sentence should 7 Enhancement is clear and where there upheld be the record indicat- convincing evidence on ing presence playground. While extending this to include a bas- definition may appropriate ketball court be case, be cautious our instant we must statutory language and interpretatiоn of supports that the record intent ensure statute.7 I concur the result Accordingly, Majority. reached Pennsylvania, COMMONWEALTH Appellant, Hobart, Atty., Asst. Dist. Read- Alisa R. BAIRD, Appellee. John Charles Com., ing, appellant. *8 Pennsylvania. Superior Court Gary R. Swavely, Reading, appellee, 13, Argued 'April 2004. filed) (no brief 27, July Filed BENDER, BEFORE: McCAFFERY TAMILIA, JJ.
BENDER, BY J.:
OPINION appeals from the 7, of three judgment of sentence
May - -, case, Blakely Washington, U.S. it in the instant 7. While not raised (2004), 2531, Apprendi required L.Ed.2d 403 jury be S.Ct. would would seem that using Jersey, 120 S.Ct. 530 U.S. cases v. New future make this determination (2000). beyond 147 L.Ed.2d doubt standard. reasonable