COMMONWEALTH оf Pennsylvania, Appellant, v. Orlando HINDS, Appellee.
Superior Court of Pennsylvania.
Argued Dec. 15, 2000. Filed April 25, 2001.
775 A.2d 859
¶ 3 I conclude that the evidence of Drummond‘s conduct of prior drug sales from his apartment coupled with his close proximity to the school and his possession of a substantial amount of cash is sufficient to sustain a finding that Drummond had recently completed drug sales for cash within the school zone. Further, Drummond‘s possession of multiple pink bags of the same type used to package small amounts of cocaine, together with his possession of larger amounts of the drug itself, and the absence of any personal use paraphernalia from Drummond‘s apartment establishes his intent to engage in further distribution consistent with his prior sales.
¶ 4 Accordingly, I concur in the Majority‘s determination that Drummond is properly subject to the sentencing enhancement provided by
¶ 5 McEWEN, President Judge joins this concurring opinion.
DEL SOLE, J., concurring and dissenting:
¶ 1 I join the majority except in its application of
John H. Arnold, York, for appellee.
Before McEWEN, P.J., DEL SOLE, KELLY, POPOVICH, JOHNSON, JOYCE, MUSMANNO, ORIE MELVIN, and LALLY-GREEN, JJ.
JOYCE, J.:
¶ 1 The Commonwealth appeals from the judgment of sentence entered following Appellee‘s convictions for two counts of possession of a controlled substance with the intent to deliver (PWID),1 two counts of criminal conspiracy,2 and one count of prohibitive offensive weapons.3 For the reasons set forth below, we vacate and remand for resentencing.4 The relevant facts and procedural history of this case are as follows.
¶ 2 On December 21, 1998, the police executed a search warrant at the apartment occupied by Appellee and his girlfriend, Lena Fa Glenn, which was located at the rear of the building on the second floor.5 Pursuant to their search, the police seized 5.97 grams of crack cocaine, four Ziploc packets containing 3.1 grams of marijuana, various drug pаckaging paraphernalia and two guns which had sawed off barrels.
¶ 3 Following the May 6-7, 1999 jury trial, Appellee was convicted of the above named offenses. Subsequently, the Commonwealth filed notices pursuant to
¶ 4 The sole issue raised for our review is whether the trial court erred in failing tо apply the mandatory two (2) year sentence pursuant to
Drug-Free School Zones.
(a) General rule.—A person 18 years of age or older who is convicted in any court of this Commonwealth of a violation of section 13(a)(14) or
(30) of the act of April 14, 1972 (P.L. 233, No. 64 [ 35 P.S. § 780-113(a)(14) or (30) ]) known as The Controlled Substance, Drug, Device and Cosmetic Act, shall, if the delivery or possession with intent to deliver of the controlled substance occurred within 1,000 feet of the real property on which is located a public, private or parochial school or a college or university or within 250 feet of the real property on which is locatеd a recreation center or playground or on a school bus, be sentenced to a minimum sentence of at least two years of total confinement, notwithstanding any other provision of this title, The Controlled Substance, Drug, Device and Cosmetic Act or other statute to the contrary. The maximum term of imprisonment shall be four years for any offense:
- subject to this section; and
- for which The Controlled Substance, Drug, Device and Cosmetic Act provides for a maximum term of imprisonment of less than four years.
If the sentencing court finds that the delivery or possession with intent to deliver was to an individual under 18 years оf age, then this section shall not be applicable and the offense shall be subject to section 6314 (relating to sentencing and penalties for trafficking drugs to minors).
¶ 5 Appellee stipulated to the fact that his apartment was located within 1,000 feet from both Christ Lutheran School and St Mary‘s School. Despite this stipulation, however, the court determined that the provision did not apply based on the holding in Commonwealth v. Wilson, 737 A.2d 1281 (Pa.Super.1999) (unpublished memorandum). The Court in Wilson, supra, however, did not discuss the applicability of section 6317, as only the applicability of section 6314 (Sentencing and penalties for trafficking drugs to minors) was at issue. Appelleе claims that although section 6317 was not discussed, the implication is that the same analysis should apply where section 6317 is merely an amendment of section 6314. Therefore, Appellee claims that for section 6317 to apply, the offense must necessarily involve a minor. We disagree.
¶ 6 This Court has previously considered the rules of statutory construction and analyzed the legislative intent in enacting this statute when discussing the applicability of this sentencing provision with regards to a playground. The same considerations apply to the decision which we render in this case, therеfore, we will restate this Court‘s prior findings for purposes of our discussion. Relevantly, this Court has stated:
In construing the enactments of the legislature, appellate courts must refer to the provisions of the Statutory Construction Act. In determining the meaning of a statute, we are obliged to consider the intent of the legislature and give effect to that intention. Courts may disregard the statutory construction rules only when the application of such rules would result in a construction inconsistent with the manifest intent of the General Assembly. The General Assembly, in clarifying the proper approach to be used in the determination of legislative intent, stipulated that:
- The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
- When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregard-
ed under the pretext of pursuing its spirit. - When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:
- The occasion and necessity for the statute.
- The circumstances under which it was enacted.
- The mischief to be remedied.
- The object to be attained.
- The former law, if any, including other statutes upon the same or similar subjects.
- The consequences of a particular interpretation.
- The contemporaneous legislative history.
- Legislative and administrative interpretations of such statute.
We are to give the words of a statute their plain and ordinary meaning. We are required to construe words of a statute ... according to their common and accepted usage. Words of a statute are to be considered in their grammatical context. Furthermore, we may not add provisions that the General Assembly has omitted unless the phrase is necessary to the construction of the statute. Moreover, the Pennsylvania Supreme Court held that when interpreting a statute, presumably every word, sеntence or provision therein is intended for some purpose, and accordingly must be given effect....
Commonwealth v. Campbell, 758 A.2d 1231, 1233-1234 (Pa.Super.2000) (citations and quotation marks omitted). With regards to interpreting this particular statute, this Court stated as follows:
Prior to the enactment of section 6317, “Youth/School Enhancement” was the title of the previously controlling enhancement provision, which only applied to areas “within 1000 feet of a public or private elementary or secondary school.” It is our interpretation that the General Assembly regarded this statute as insufficient and, therefore, enacted
18 Pa. C.S.A. § 6317 to rеctify those insufficiencies. By enacting section 6317 in place of its predecessor, the Pennsylvania General Assembly not only intended to protect our children from the evils of illegal drug dealing on school grounds and on school buses, but additionally intended to protect our children from those same evils on or near their playgrounds and recreation centers, whether associated with municipal facilities, school property or, as in this present case, semiprivate apartment complexes....It is our finding that the General Assembly‘s goal and purpose [in enaсting this statute] was to protect the children of our communities from the ravages and evils of the illegal drug trade that pervades our country. Through the enactment of section 6317, it attempted to fortify the barrier that segregates the places where our children frequent from the illegal drug scene. A strict reading of the statute exemplifies the General Assembly‘s intent. The statute protects our children “within 1000 feet of the real property on which is located a public, private or parochial school or a college or a university.” Furthermore, it protects our childrеn on their way to and from school on their school bus. Finally, it protects our children in the places where they routinely play. The General Assembly did not choose to limit this protection solely to school play areas or municipal facilities, but chose to reinforce the purpose of the statute by including all areas within 250 feet of the
real property on which is located a recreation center or playground.
Id. at 1236-1237 (citations and quotation marks omitted) (emphasis original).
¶ 7 Applying the rules of statutory construction and adopting this Court‘s prior interpretation of the legislative intent in enacting this statute, we must conclude the trial court erred in failing to apply the provisions of section 6317 under the facts of this case. In finding that the legislative intent of the statute is to protect the children of our communities from the harms attendant to the drug trade, we must necessarily determine that such harms are present when the individual merely resides within the mandatory 1,000 feet vicinity of a school, even when the drugs are not necessarily accessible to children. To hold otherwise would emasculate the meaning of “Drug Free School Zone.” We cannot interpret the word, “zone,” to exclude a residence which is clearly within the zone but not readily accessible by school age children. As discussed earlier, the statute is intended to curtail not only drug transactions involving children, but also to protect young children from all illegal activity which is necessarily attendant with the drug trade. The statute clearly does not require anything more than the actor delivering or possessing drugs within the requisite distance from the school. Contrary to Appellee‘s argument, we refuse to further require that a minor be involved in the offense.
¶ 8 Our findings today are consistent with the findings of another jurisdiction on a related matter. When deciding the constitutionality of a similar statute in Maryland, the Court of Appeals of that state determined that the sentencing provision applied regardless of the presence or absence of children in the area at the relevant time. Dawson v. State of Maryland, 329 Md. 275, 619 A.2d 111 (1993). Implicit in that court‘s findings is that whether or not the drugs are in fact accessible to children is irrelevant. Rather, it is protecting the children from all the attendant harms of the drug trade which is of paramount concern.7 Therefore, the fact that no children were present is of no сonsequence. Appellee‘s argument to the contrary must fail. Therefore, we are constrained to reverse and remand the findings of the trial court.
¶ 9 Judgment of sentence vacated. Case remanded for resentencing in light of the applicability of the sentencing provisions under
¶ 10 JOHNSON, J., files Dissenting Opinion in which McEWEN, P.J. and DEL SOLE, J., join.
¶ 11 MUSMANNO, J., files Dissenting Opinion in which DEL SOLE, J., join.
¶ 12 DEL SOLE, J., files Dissenting Statement in which MUSMANNO, J., joins.
JOHNSON, J.:
¶ 1 I join the dissent of the Honorable John Musmanno. The Majority would apply the enhancement under section 6317(a) to all defendants, including Orlando Hinds, who possess illegal drugs in a school zone so long as they intend to distribute thе drugs anywhere. This interpretation does
¶ 2 The police power is the substantive authority of the state to regulate private rights in the public interest. See Dranzo v. Winterhalter, 395 Pa.Super. 578, 577 A.2d 1349, 1355 (1990). Such power enables the state to enact legislation tо protect the health, welfare, and safety of its citizens and to provide for the punishment, treatment and rehabilitation of those who commit acts inimical to the interest of the citizenry at large. See Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47, 49 (1980). While thus broad in scope, the police power is finite, circumscribed by the mandate of substantive due process and subject to judicial review and restraint. See Dranzo, 577 A.2d at 1355. Although “regulation under a proper exercise of the police power is due process,” regulation the effect of which extends beyond the legislative objective sought violates due prоcess. See Balent v. City of Wilkes-Barre, 542 Pa. 555, 669 A.2d 309, 314-15 (1995). See also Commonwealth v. Sterlace, 24 Pa.Cmwlth. 62, 354 A.2d 27, 29 (1976) (admonishing that “even legitimate legislative goals cannot be pursued by means which stifle fundamental personal liberty when the goals can be otherwise more reasonably achieved“).
¶ 3 Accordingly, “[a] law that purports to be an exercise of the police power must not be arbitrary, unreasonable or patently beyond the necessities of the case, and the means which it employs must have a real and substantial relationship to the object sought to be attained.” Dranzo, 577 A.2d at 1355. See also Gambone v. Commonwealth, 375 Pa. 547, 101 A.2d 634, 637 (1954) (stating that law must not be “unreasonable, unduly oppressive or patently beyond the necessities of the case“). Thus, where provisions of a statute, when applied, impose restraints on individual liberty that do not bear a “real and substantial relationship” to the policy objective the legislature sought to achieve by way of the statute, those provisions are infirm. See Bonadio, 415 A.2d at 49. Even a legitimate legislative end does not justify any means, but only such limited means as produce the potential benefit envisioned by the statute. See Frantz v. Com. Dept. of Transp., 168 Pa.Cmwlth. 35, 649 A.2d 148, 151 (1994) (concluding that sentencing statute providing for restriction of driver‘s license upon conviction of underage drinking was valid exercise оf police power based on realization of intended benefit to decrease alcohol-related accidents among sixteen to twenty-year olds).
¶ 4 Where application of a statute places at issue the relationship of means employed to end to be achieved, our courts bear an affirmative duty to assure that the intended benefit is served by the means at issue. See Balent, 669 A.2d at 315.
¶ 5 The statute at issue, entitled “Drug Free School Zones,”
§ 6317. Drug-free school zones
(a) General rule.—A person 18 years of age or older who is convicted in any court of this Commonwealth of a violation of section 13(a)(14) [ (prescription by practitioner “off-license“)] or (30) [ (possession by non-practitioner with intent to deliver) ] of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, shall, if the delivery or possession with intent to deliver of the controlled substance occurred within 1,000 feet of the real property on which is located a public, private or parochial school or a college or university or within 250 feet of the real property on which is located a recreation center or playground or on a school bus, be sentenced to a minimum sentence of at least two years of total confinement, notwithstanding any other provision of this title, The Controlled Substancе, Drug, Device and Cosmetic Act or other statute to the contrary. The maximum term of imprisonment shall be four years for any offense:
- subject to this section; and
- for which The Controlled Substance, Drug, Device and Cosmetic Act pro-
vides for a maximum term of imprisonment of less than four years. If the sentencing court finds that the delivery or possession with intent to deliver was to an individual under 18 years of age, then this section shall not be applicable and the offense shall be subject to section 6314 (relating to sentencing and penalties for trafficking drugs to minors).
¶ 6 This Court has reviewed this provision and concluded that the legislаture‘s objective in its passage was “not only ... to protect our children from the evils of illegal drug dealing on school grounds and on school buses, but additionally intended to protect our children from those same evils on or near our playgrounds and recreation centers.” Majority Opinion at 5 (quoting Campbell, 758 A.2d at 1233). In Campbell, we elaborated that:
the General Assembly‘s goal and purpose was to protect the children of our communities from the ravages and evils of the illegal drug trade that pervades our country. Through the enactment of section 6317, it attempted to fortify the barrier that segregates the placеs where our children frequent from the illegal drug scene.
¶ 7 Such an objective is laudable and well within the permissible scope of the Commonwealth‘s police power if applied within the framework stated by the law‘s sponsor. See id. (quoting Legislative Journal—House, June 3, 1997, at 1162). See also Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47, 49 (1980) (recognizing penal and sentencing legislation designed to protect the public from identified crimes within the permissible scope of the police power). As we recognized in Campbell, Representative Charles Dent ((R) Lehigh) focused the enhancement on conduct that occurred within schоol zones:
My amendment, A2268, simply puts teeth into Pennsylvania‘s existing Drug-Free-School-Zone-Act. Essentially, any sale that occurs within the drug-free zone, whether the sale is to a minor or a person over the age of 18, would be prosecuted with the two-year mandatory sentencing provision.
Id., 758 A.2d at 1237 (emphasis added; emphasis in Campbell omitted) (quoting Legislative Journal—House, June 3, 1997, at 1162).
¶ 8 Were the Majority to focus the enhancement similarly, allowing its application only where a defendant convicted under
¶ 9 The case before us is a showpiece of that infirmity. As Judge Musmanno has observed, the Commonwealth introduced no evidence, either at trial or at the sentencing hearing, to establish that Orlando Hinds intended distribution of the substances he possessed inside the drug-free school zone. Thus, Hinds‘s sentence will be assessed in response to circumstantial evidence that, while present in the drug-free school zone, he formed an intent to deliver controlled substances somewhere. I fail to see how such an intent, without proof that the Hinds intended further to act within the zone, establishes a basis for sentence enhancement under section 6317. Ultimately, Hinds‘s sentence fails to advance the objective of the statute and incarcerates the defendant for a period longer than provided for his substantive offense with no consideration of the limits and demands of due process on the police power of the Commonwealth. Accordingly, I dissent. I would affirm the decision of the trial court not to apply the sentence enhancement on the facts of this case.
¶ 10 McEWEN, P.J., and DEL SOLE, J., join this Dissenting Opinion.
MUSMANNO, J.:
¶ 1 While I joined the Opinion of our Court in the companion case of Commonwealth v. Drummond, 775 A.2d 849 (Pa.Super. 2001) (en banc), I am constrained to dissent to this Court‘s interpretation of
¶ 2 For the sentencing provisions of sеction 6317 to apply, the Commonwealth must establish that “the delivery or possession with intent to deliver of the controlled substance occurred within 1,000 feet of the real property on which is located a public, private or parochial school or a college or university or within 250 feet of the real property on which is located a recreation center or a playground or on a school bus[.]”
¶ 3 In our recent decision in Drummond, the evidence clearly established that Drummond delivered or intended to deliver cocaine within 1,000 feet of a school. As the result of a search warrant executed on Drummond‘s apartment, police seized $75 аnd two packets of cocaine from Drummond‘s person, and three bags of cocaine, $205 in cash, and thirty smaller ziploc bags from the immediate vicinity of Drummond. Moreover, the evidence established that Drummond sold drugs from his apartment, which was located within the proscribed area. Drummond, 775 A.2d at 854.
¶ 4 In the present case, the Commonwealth presented no evidence that Hinds conducted drug transactions from his home, that he intended to conduct drug transactions from his home, or that he sold or intended to sell the drugs near the schools located within 1,000 feet of his home. I do not believe that the Legislature intended for section 6317 to apply where, as here, drugs merely were seized from within a residence, and there was no evidence that the defendant sold or intended to sell the drugs within the proscribed area.8 In my opinion, this section requires the Commonwealth to establish that the defendant intended to deliver the controlled substance within the proscribed area.
¶ 5 For the reasons set forth above, I conclude that the trial court did not err in refusing to apply the mandatory sentencing provisions of section 6317, and I dissent on that basis.
¶ 6 DEL SOLE, J. and JOHNSON, J. joins this Dissenting Opinion.
DEL SOLE, J.:
¶ 1 I join the dissents of Judge Jоhnson and Judge Musmanno. I write separately because I conclude that the statute is too vague to permit implementation.
¶ 2 The prohibited conduct must occur “within 1000 feet of real property on which is located a public, private or parochial school or a college or university ...”
¶ 3 Thus, while I agree with the legislative intent to restrict sales at or near schools, I cannot find this statute sufficiently specific to permit enforcement.
¶ 4 MUSMANNO, J., joins this Dissenting Statement.
JOSEPH A. DEL SOLE
JUDGE