*1 frоm Drummond’s drug nessed sales Pennsylvania, COMMONWEALTH were introduced at trial with-
apartment, Appellant, objection out from Drummond’s counsel. v. ¶ 3 I conclude that the evidence of HINDS, Appellee. Orlando prior drug
Drummond’s conduct of sales Pennsylvania. his with his close apartment coupled Superior from Court proximity to the school and his Argued Dec. 2000. amount of cash sufficient substantial 25, 2001. April Filed finding that Drummond had sustain recently completed drug for cash sales Further,
within the school zone. Drum- possession multiple pink bags
mond’s type package
the same used small cocaine, together pos-
amounts of with his larger
session of it- amounts of the
self, any personal and the absence of use
paraphernalia apart- from Drummond’s engage
ment establishes his intent to
further distribution consistent pri- with his
or sales.
¶ 4 Accordingly, Majori- concur determination
ty’s that Drummond is
properly subject en- provided by
hancement 18 Pa.C.S.
¶ McEWEN, joins Judge President concurring opinion. SOLE, J., concurring and
dissenting: join 1 I majority except in its of 18 Pa.C.S.A. expressed my dissenting
reasons state- Hinds,
ment in v. PA
Super 2001 WL No. 1518 (en banc) (Del Sole,
MDA 1999 dissent- J.
ing).
860 history of this case procedural
facts and are as follows. 1998, 21, police On December apart- at the
executed a search warrant occupied by Appellee girl- ment and his Glenn, friend, Lena Fa which was located building on the second at the rear of search, police floor.5 Pursuant to their cocaine, of crack four grams seized 5.97 containing grams 3.1 Ziploc packets marijuana, drug packaging para- various phernalia guns and two which had sawed off barrels. 6-7, Following May jury
trial, Appellee was convicted above Subsequently, named offenses. Com- pursuant filed notices to 18 monwealth seeking § § C.S.A. prescribed mandatory sentences. On York, Adams, Atty., Heather Asst. Dist. 23, 1999, Appel- the court sentenced June Com., appellant. for (10) (5) five to ten aggregate lee to an Arnold, York, appellee. H. John This sentence in- years’ imprisonment. un- mandatory period required cluded the McEWEN, P.J., Before However, § der 18 Pa.C.S.A. 7508. KELLY, POPOVICH, JOHNSON, rejected mandatory court sentences under JOYCE, MUSMANNO, MELVIN, ORIE 6314 and 6317. The Com- both sections LALLY-GREEN, JJ. timely appealed. monwealth JOYCE, J.: raised for our review The sole issue fаiling is whether the trial court erred from the appeals 1 The Commonwealth year two sen- following judgment of sentence entered § 6317.6 pursuant tence to 18 Pa.C.S.A. for two counts of Appellee’s convictions In the statute states: part, relevant of a controlled substance Drug-Free Zones. School (PWID),1 the intent to deliver two counts (a) rule.-—A person and one count of conspiracy,2 of criminal age or older who is convicted prohibitive weapons.3 offensive For the below, we vacate and court of reasons set forth 13(a)(14) or а violation of section resentencing.4 remand for The relevant 780-113(a)(30). circulating opinion, February § vote date 1. P.S. 2001). § 2. 18 Pa.C.S.A. 903. charged separately with 5. Lena Fa was Glenn related to this search. various offenses
3. 18 Pa.C.S.A.
an issue
Commonwealth does not raise
today
with our
4. Our decision
is consistent
regarding
application of section 6314.
holding
companion
of Common-
in the
case
Therefore,
Drummond,
(en
we
further determination.
banc
make no
wealth v.
ed under the only applied to provision, ment which spirit. public feet of a areas “within 1000 (c) of the statute are When the words elementary secondary school.” private the intention of the Gen- explicit, that the General interpretation It is our Assembly may eral be ascertained Assembly regarded this statute as insuf- considering, among other mat- and, therefore, ficient enacted 18 ters: rectify § 6317 to those insuffi- C.S.A. necessity for the The occasion and By enacting ciencies. section 6317 statute. predecessor, Pennsylva- its place of under which it The circumstances *4 Assembly nia Genеral was enacted. the evils of protect our children from (3) The mischief to be remedied. dealing grounds on school illegal drug (4) object The to be attained. buses, additionally and on school but (5) law, including if any, The former our children from protect intended to n upon other statutes the same play- evils on or near their those same subjects. similar centers, whether grounds and recreation (6) particular consequences The facilities, municipal associated interpretation. or, present this property contemporaneous legislаtive The case, semiprivate apartment complex- history. es.... and administrative in- Legislative Assem- finding It is our General of such statute. terpretations enacting this bly’s goal purpose [in and give are to the words of statute
We the children of protect statute] was to ordinary meaning. We plain their and ravages from the and our communities words of a stat- required are to construe per- that illegal drug evils of the trade according ute ... to their common and enact- country. Through vades our the usage. Words of a statute are accepted 6317, it аttempted ment of section grammatical be considered in their segregates the fortify the barrier Furthermore, may we not add context. frequent from places where our children Assembly the General reading A strict illegal drug the scene. phrase is neces- has omitted unless exemplifies of the statute General sary of the statute. construction Assembly’s protects intent. The statute Moreover, Pennsylvania Supreme our children “within 1000 interpreting a Court held that when is located a real on which word, statute, every sen- presumably school or provision therеin is intended tence or university.” or a Further- accordingly must be purpose, some more, protects it our children on their given effect.... way to and from school on their school v. our children in Finally, protects bus. it (citations (Pa.Super.2000) 1233-1234 routinely play. they where omitted). With re- quotation marks choose to Assembly did not stat- interpreting particular this gards play solely limit to school protection ute, facilities, stated as follows: this Court but chose to municipal areas or of the statute purpose reinforce the of section
Prior to the enactment
250 feet of the
including
ti-
all areas within
Enhancement” was the
“Youth/School
real
Maryland,
Appeals
is located a re-
of that
Court
playground.
creation center or
sentencing pro-
state determined that the
applied regardless of
presence
vision
(citations
Id. at 1236-1237
quotation
absence of children
the area at the
omitted) (emphasis original).
marks
Mary-
relevant time. Dawson v. State of
¶ Applying
statutory
rules of
con-
land,
(1993).
329 Md.
residence clearly which is within the zone ¶ JOHNSON, J., Dissenting files but not readily age aсcessible McEWEN, in Opinion which P.J. and earlier, children. As discussed the statute SOLE, J., join. is intended to curtail drug trans- children, actions involving pro- but also to ¶ MUSMANNO, J., files Dissenting tect young children illegal from all activity Opinion J., in which DEL join. which is necessarily attendant with the SOLE, J., 12 DEL Dissenting files drug trade. The clearly statute does not MUSMANNO, J., Statement in which require anything more than the actor de- joins. livering or possessing drugs within requisite distance from the school. Con- JOHNSON, J.: trary Appellee’s argument, to we refuse to join 1 I the dissent of the Honorable require further that a minor be involved Majority ap- John Musmanno. The would the offеnse. 6317(a) ply the enhancement under section defendants, Hinds, findings today 8 Our all including consis Orlando findings tent with the jurisdic possess illegal of another who drugs a school zone tion on a deciding related matter. When so long they intend to distribute the constitutionality of a in drugs anywhere. interpretation similar statute This does ings accessibility drugs by We note further that 18 Pa.C.S.A. to the (Sentencing trafficking ap- minors is not a factor detrimental to the minors) applies when the sale is provisions plication of the of section 6317. actually to a minor. The existence of this Rather, separаte provision exists to address section, along appli- reference to its that offense. cability supports further our find- (1995). intent, also Commonwealth v. Ster legislature’s See
not effectuate
applied
lace,
the law as
consequently,
causes
354 A.2d
Pa.Cmwlth.
scope
exceed the
permissible
(1976) (admonishing
legitimate
that “even
authority.
of sentences for
Enhancement
goals
pursued by
cannot be
to deliver cannot
possession with intent
personal
stifle fundamental
means which
pre-
serve the
of the statute
liberty
goals can be
when the
оtherwise
dealing
a school zone
vent
inside
achieved”).
reasonably
more
point
where the intended
find,
Accordingly,
purports
law that
“[a]
according-
outside the zone. I would
ly,
police power
enhancement does
must
to be
exercise of
relationship
not bear a real and substantial
arbitrary,
patently
not be
unreasonable or
statutory objective
of section 6317
case,
and the
beyond the necessities
proves
unless the
at sen-
employs
which it
must have a real
means
tencing that the defendant intended distri-
object
relatiоnship
and substantial
inside the zone. I would limit sec-
bution
Dranzo,
sought
577 A.2d
to be attained.”
accordingly and would affirm the
tion 6317
at 1355.
also
v. Common
See
Gambone
decision of the trial court not to
wealth,
375 Pa.
sentence enhancement on the facts of this
(1954) (stating
not be “un
that law must
to discuss the
separately
case.
write
reasonable, unduly oppressive
patently
proper
explain
limits of section 6317
case”).
the necessities of the
beyond
my
Majority’s broad
conviction that
Thus,
where
when
interpretation
of that section
it be-
on individual lib
applied, impose restraints
yond
permissible scope
of the Com-
*6
and substan
erty that do not bear a “real
police power.
monwealth’s
objective the
relationship”
policy
tial
¶ 2
police power
The
is the substantive
legislature sought
by way
achieve
of the
authority
regulate private
of the state to
infirm. See
those
public
Dranzo
rights
the
interest. See
Bonadio,
a legiti
865
question
any particular
whether
a
min-
sentencing measure
establishes
statutory provision is so
related to
imum
of incarceration for certain
terms
public good and so
reasonable
drug-related
offenses when committed
means it prescribes
justify
as to
the within a defined distance of schools and
police power,
exercise of the
is one for
places frequented by
other
children. See
instance,
judgment,
the first
of
Commonwealth v.
758 A.2d
law-making
of the govern-
branch
1231,
(Pa.Super.2000).
1233-34
Where the
ment, but its
determination is for
final
of which a
offense
defendant is convicted
the courts.
minimum
carries a sentence less than the
Gambone,
634,
375 Pa.
101 A.2d
6317(a)(2),
term
mandated
section
(1954)
added).
(emphasis
“If there is
operates
statute
as a sentence enhance-
doubt as to whether the statute is enacted
(a), pursuant
ment. Subsection
to which
objective,
for a legitimate police
if,
con-
the Majority would remand Orlando
ceding the statute’s purpose,
its exercise Hinds’s
imposition
longer
case
of
goes
far,
judiciary
duty
too
then the
has
sentence, рrovides as follows:
given
to declare
police
exercise
Drug-free
§ 6317.
school zones
Balent,
power invalid.”
A.2d
(a)
added).
General
rule. —A person
(emphasis
In
view of so clear
mandate,
age
or older who is convicted in
I cannot accept
Majority’s
validation of the
court of this Commonwealth of a viola-
consequences
untoward
13(a)(14)
engendered by application of
tion of section
(prescription
[
section 6317
merely
“off-license”)
on the basis of
“plain language”
by practitioner
] or
the statute.
See also
Pa.C.S.
(possession by non-practitioner
[
with in-
1922(1)
deliver)
(mandating presumption that
April
tent to
of the act of
]
Assembly
(P.L.
does not intend a
64),
result
No.
known as The
absurd,
impossible
of execution or
Substance, Drug,
Controlled
Device and
unreasonable); Petition
Alteration
Act, shall, if
Cosmetic
Lines
Indiana
Twps.,
and Shaler
possession with intent to
deliver of the
Pa.Super.
controlled substance occurred within
*7
(quoting
Staiger,
370,
Null v.
333 Pa.
feet of the real
on which
(1939)) (“It
A.2d
is
that
obvious
is located a
or
justice
administration of
requires
school or a
university
or with-
something more than
apрlication
the mere
in 250
the real
law,
of the letter of the
designed for some
play-
is located
recreation center or
particular
cases,
of ordinary
class
to all
bus,
ground or on a school
be sentenced
others, however
by
modified
accident or
ato minimum sentence of at least two
withdrawn
extraordinary circumstances
confinement,
years of total
notwith-
from
spirit
of its
It
enactment.
follows
title,
standing any
provision
other
of this
that general terms should be so limited in
Substance, Drug,
The
Device
Controlled
injustice,
their
as not to
to
lеad
and
Act or
Cosmetic
other statute to the
oppression, or an
consequence.
absurd
It
contrary. The maximum
im-
term of
therefore,
always,
will
presumed
be
that
prisonment
years
shall be four
for
Legislature
exceptions
intended
to its
offense:
language which would avoid results of this
section;
subject to this
and
character.”).
Substance,
issue,
“Drug
5 The statute at
entitled
which
Controlled
Zones,”
§
Free School
Act
Drug,
pro-
18 Pa.C.S.
is
Device and Cosmetic
on
focused the enhancement
conduct that
impris-
vides for a maximum term of
years.
occurred within schоol zones:
onment of less than four
amendment, A2268,
My
simply puts
that
If the
court finds
Pennsylvania’s existing Drug-
teeth into
with intent to de-
delivery
Essentially,
Free-School-Zone-Act.
an individual under 18
liver was to
drug-
that
within the
any sale
occurs
then this section shall not be
age,
zone,
free
whether
sale
to a minor
applicable and the offense shall be sub-
age of
person
or a
over the
would be
ject
(relating
to section
to sentenc-
two-year
prosecuted
with the
ing
trafficking drugs
to
sentencing provision.
minors).
Id.,
added;
(emphasis
well within the
of the
bear
if
if
of those children
police power
applied
protection
to the
Commonwealth’s
con-
by
point
intended
of distribution for the
within the framework stated
the law’s
pоssessed
substances the defendant
(quoting Legislative
id.
trolled
sponsor.
See
1162).
3, 1997,
House,
frequent” as
[]
is not “where
children
June
Journal —
Bonadio,
by
defined
the statute. The “barrier”
also Commonwealth v.
See
by
to enforce
section 6317 erects and seeks
(recognizing
enhancement,
located with-
designed means of the
is
penal
sentencing legislation
and 250 feet
in 1000 feet around schools
protect
public
from identified crimes
and recreation cen-
scope
police
playgrounds
around
permissible
of the enhancement
recognized
Application
As we
ters.
power).
((R)
without a demonstration from the Com-
Representative
Lehigh)
Charles Dent
zone,
a
for
the defendant
act within the
establishes
basis
monwealth
area,
drugs
inside that
de-
distribution
sentence enhancement under section
a “real and
prives the enhancement of
Ultimately, Hinds’s sentence fails to ad-
relationship”
statutory
substantial
objective
the statute and in-
vance the
objective.
concretely,
legisla-
if
Stated
a period
carcerates
the defendant
ture were to erect a wall 1000 feet from
than
for his substantive
longer
provided
every
pro-
school
the Commonwealth to
limits
offense with no consideration of the
trade,
drug
tect school children from the
process
police
due
on the
and demands of
living
defendant
within the wall who in- power
According-
of the Commonwealth.
drugs
to sell
threaten chil-
tended
would
I
I
affirm the decision
ly, dissent.
would
dren inside the wall
he intended to
if
apply
of the trial court not to
the sentence
Clearly
make his sales inside the wall.
enhancement on the facts of this case.
then,
prove
Commonwealth must
defendant’s intent to sell
inside the
¶ McEWEN, P.J.,
drug-free school zone for the offense of
J., join
Dissenting Opinion.
Possession with Intent
to Deliver to re-
main within the purview of the sentence
MUSMANNO, J.:
sum,
enhancement.
In
the means of the
Majority
statute as the
them
would
joined
I
Opinion
1 While
of our
objective
not matched to the
the stat-
companion
Court in the
case of Common-
ute
seeks. Unless
of those
Drummond,
wealth v.
¶ 9 The case before us a showpiece the real on which is located a infirmity. Judge As Musmanno has playground or a or on a recreation center observed, the Commonwealth introduced 18 Pa.C.S.A. bus[.]” evidence, no either at trial or at the sen- its enact- Legislature, believe tencing hearing, to establish that Orlando prescribe ment of intended to section Hinds intended distribution of the sub- more severe dealers possessed drug-free he inside the stances Thus, prey upon who children. the statute Thus, will school zоne. Hinds’s sentence penalty increases the for dealers who response be assessed in to circumstantial *9 sales, sales, in the that, make or intend to make in present drug- evidence while center, school, zone, area around a recreation an intent free school he formed to a bus. There- playground, or on school controlled substances deliver somewhere. fore, intent, I that for section 6317 to I without believe fail to see how such must establish proof apply, that the Hinds intended further to the Commonwealth 6317, and I dis- ing of section drugs, or intended that the defendant sold that basis. area. sent on proscribed drugs, to sell within ¶ in Drum- In our recent decision ¶ JOHNSON, SOLE, DEL J. and J. mond, clearly established the evidence Dissenting Opinion. joins this Drummond delivered or intended 1,000 feet deliver cocaine J.: warrant the result of a search school. As join Judge 1 I of Johnson dissents po- apartment, on Drummond’s executed I separately Musmanno. write Judge cocaine packets seized and two of lice $75 too I that the statute is because conclude person, bags and three from Drummond’s implementation. vague permit cоcaine, cash, thirty of smaller $205 occur conduct must prohibited vicinity of ziploc bags from the immediate “within 1000 feet of real Moreover, the evidence es- Drummond. private is located a public, from drugs that Drummond sold tablished ...” university school or a was located within apartment, his which this My concern with Pa.C.S.A. Drummond, 775 area. proscribed the “real boundary language is A.2d 854. therefore one property” is never marked case, the present 4 In the Common- proscribed cannot know the extent of the no evidence that Hinds presented wealth Further, it is not many places, area. from his drug conducted transactions learning uncommon for institutions home, that he intended to conduct space lease commercial to accommodate home, his or that he sold transactions from A of the statute reading students. literal near the drugs or intended to sell the 1000 feet would extend the “zone” to of his schools located within if building even its around a commercial Legisla- I home. do not believe known. generally is not use as apply intended for section 6317 to ture ¶ Thus, agree legisla- with the while here, where, drugs merely were seized at or near tive intent to restrict sales residence, no from within a and there was schools, I this statute suffi- cannot find sold or intend- evidence that the defendant ciently specific permit enforcement. proscribed sell the within the ed to requires In my opinion, area.8 this section ¶ MUSMANNO, J., joins to establish Dissenting Statement. to deliver the con- defendant proscribed within the trolled substance
area. above, I For the set forth reasons not that the trial court did err
conclude mandatory sentenc-
refusing apply that, years for prison term of two to four although did utive the trial court I also notе conspiracy possess cocaine with sentencing provi- criminal deliver; prison term of imposed a concurrent intent to the court sions of section charge years one to two on the two to four longer sentence than deliver; and a marijuana with intent to required by that The trial court sen- section. twenty-four prison prison concurrent term of six to term of Hinds as follows: tenced prohibited offen- on the posses- months conviction years for the conviction of three to six cocaine; weapons. sive a consec- sion with intent to deliver