*1 A.2d Pennsylvania COMMONWEALTH of MURPHY, Appellant. Kenneth Superior Pennsylvania. Court of April Submitted 1991. Filed June *2 Defender, Joseph Norristown, J. Asst. Public Hylan, appellant.
Mary M. and J. Allen Killinger Daringer, Asst. Dist. Norristown, Attys., Com. ROWLEY, Judge,
Before President and KELLY and BROSKY, JJ.
BROSKY, Judge: *3 appeals
Kenneth Murphy judgment from the of sentence of the trial following his trial bench convictions substances,1 possession of possession controlled of con- trolled the conspir- substances with intent to deliver2 and acy.3 Appellant sentenced a term-of-imprisonment was of eleven and months twenty-three one-half months re- garding possession conviction;4 the twenty-one months to months the fifty-nine regarding possession intent with and, conviction; deliver fifteen months to months fifty-nine regarding conspiracy conviction. The aforementioned sentences were to run concurrent with one-another. The stated, trial court sentencing guidelines
Under the in 204 Pa. Section Code 303.9(c)(3), ... for the offense of intent possession with 780-113(a)(16). 1. 35 P.S. § 780-113(a)(30). 35 P.S.
2.
3. 18 Pa.C.S. § 903. 1, January opinion, p. trial court noted its n. that, simple possession that the "[w]hile [it] concedes offense of merges sentencing purposes, for it sentenced the contem- defendant in plation might appealed.” that the overall sentence be mitigated to deliver ... range [the minimum] [would be] (9-15). nine to fifteen months court determined [T]his that sentence nine to appropriate was [minimum] Furthermore, fifteen the record is clear that months[.] imposed this Court would have this [minimum] but for the fact that under the law this Court was compelled to impose at least an additional twelve months to the nine pursuant first months to the enhancement 303.9(c)(2). provisions ... 204 Pa.Code If Section this section is not the matter mandatory, obviously should remanded to sentencing court. 1/18/91,
Trial Court Opinion,
at 3-4. The trial court’s
addition of twelve months to the
mitigated
minimum
sen-
(of
months)
tence
nine
range
possession
for
intent to
with
sentence,
deliver accounts for
appellant’s
pos-
for
deliver,
session with intent to
months.
twenty-one
claims on
appeal
the trial court
in finding
erred
that it
compelled
the sentenc
apply
ing enhancement provisions found at 204
303.-
Pa.Code §
9(c)(2); and, (2)the trial court erred in
applying
sentenc
ing
since the
court did
trial
require the
prove
Commonwealth to
intend
toed
be within one-thousand feet of a school.5 We vacate
sentences for
of controlled sub-
appeal
discretionary aspects
5. This is an
from the
of a sentence.
Appellant has failed to include a concise statement of reasons relied
Tuladziecki,
upon
appeal
required by
as
513 Pa.
(1987),
2119(f).
While there is a emanating wealth information from case Pennsylvania regarding guidelines law the sentencing in there is general paucity of comment specifically regard- 303.9(c)(2), 204 Pa.Code ing which states: § (c) of The Substance, Drug, Violations Controlled Device (35 780-101-780-144) and Cosmetic Act Pa. are as- §§ signed guideline ranges to this according sub- section. When court determines that the defendant either a controlled to a person persons
distributed substance or under the age 780-114, of 18 violation of 35 P.S. or manufactured, or possesses delivered with intent de- liver a controlled substance a public within 1000feet of private school, or or elementary secondary then at least 12 up months and to 36 months added shall be ... guideline ranges which would otherwise have applicable____ [Emphasis been added.] is denying he was within one-thousand feet of a school he possessed when cocaine with intent to He only alleging distribute. is that the provi- sion inapplicable case. instant at trial facts adduced indicated that on March Norristown, Pennsylvania police officers observed an containing automobile and two other men. The three men exited police the vehicle. The officers observed bags two cocaine the rear passenger area disturbing appellant's conspiracy. We are not sentence for
457
and the other two men were arrested.7
Appellant
vehicle.
(con-
A
revealed
of cocaine
appellant
bags
search of
seven
“Pagenet
of
taining
grams),
beeper”,
a total
3.3
and
in United States
There was no
currency.
evidence
$557.55
suggested
at trial that
have
that
presented
would
to minors.
intended to sell
cocaine
trial
on the
he
Appellant alleged
day
that
repair
he left his
at a
at 7:00 a.m.
shop
arrested
automobile
in
appellant’s
One
co-defendants arrived
his automobile
bar;
gave appellant
purchased
and
a ride to a
the men
3.3
grams
Appellant
cocaine at the bar.
testified that the
in
parked
men drove to another location and
an
alley
to administer
to the car.
repairs
order
Co-defendant Omar
Byrd
driving
testified that after
a bit further
the car
overheated.
stated that the car was then
Byrd
parked,
nearby
men left the car in order to walk to a
business
and
arrested.
subsequently
establishment
were
First,
posses
we
sentence for
appellant’s
vacate
resentencing
sion of a controlled substance and remand for
court
an
sentence.8 The trial
imposed
illegal
since the trial
merged
sentencing purposes
court should have
possession
posses
crimes of
of controlled substances
stemmed from
charges
sion with intent to deliver since both
Logan,
Commonwealth v.
404
possession.
same act of
100,
(1991);
Pa.Super.
Our
Court has stated
sentencing
that a
court is not
required
adopt the
in the
recommendations
sentencing guidelines but
it
at least
must
consider them.
Cornish,
Commonwealth v.
492,
Pa.Super.
403
589 A.2d
Sessoms,
See
(1991);
718
Commonwealth
365,
516
Pa.
(1987).
459 least sentence twelve months “shall be added” to a regular defendant’s if the enhancement triggered. is In reference deadly to the weapon guideline Com- provision, our Court stated Cornish, monwealth v. supra, sentencing may disregard this section
determining the appropriate guideline sentencing ranges.
Septak,
See Commonwealth v.
375, 380,
Pa.Super.
(1986);
Commonwealth v. Drum-
518 A.2d
goole,
468, 474,
(1985).
491 A.2d
It is imperative that
the sentencing court
[Footnote 4]
determine the correct
starting point
guidelines
imposing
before
sentence.
[Citations omitted.]
Septak
Both
Drumgoole construed
[Footnote 4]
prior sentencing guidelines, which were declared uncon-
*7
Sessoms,
in stitutional
supra.
The
present guidelines
promulgated
were
on February
(effective
25, 1988).
April
Section 303.4 of the
present guidelines is substantially similar to
303.4 of
§
prior guidelines.
Id.,
at-,
Pa.Superior
Ct.
Hence, in the instant case the sentencing court had only consider sentencing provision enhancement found at 303.9(c)(2). 204 Pa.Code The addition of the additional § appellant’s months to possession sentence for deliver, pursuant with intent to to the provi- sion, only provided the trial court starting with the correct in the point guidelines before the sentencing imposed Cornish, its supra, Septak, supra, Drumgoole, sentence. supra. sentencing court was not compelled to add at least an additional months appellant’s twelve possession with intent to deliver since it could have sentenced outside of the guidelines; a sentence outside of the guidelines would required contemporaneous have “a written statement of the reason or reasons for the deviation guidelines.” 9721(b). from the Therefore, Pa.C.S. we appellant’s vacate possession sentence for with intent resentencing and remand to the trial court deliver opinion. consistent with this the trial court parties aver that of first impression. Appellant
second issue-is one claims in applying that the trial court erred the sentence enhance to his sentence for provision ment with intent to require deliver since it did not Commonwealth to first intended to be within one-thousand prove possessed feet of a school when he controlled substances Appellant presence with intent to deliver. contends that his accident, the school within one-thousand feet of was “an an Appellant’s a Brief at happenstance, [sic] coincidence[.]” consideration, sentencing guideline The instant under 303.9(c)(2) states, in pertinent part: 204 Pa.Code § court determines that the de- [sentencing] When possesses with intent deliver a controlled fendant ... school, a ... substance within 1000feet of then at least 12 months and to 36 months shall added to the up guideline ranges ... which would otherwise have been applicable____ [Emphasis added.] Pennsylvania cites no his authority support position. Comprehensive Drug He refers us to the Federal Abuse Prevention and Control Act of which is an Act sentencing guideline, and not which contains a merely states, pertinent part: similar *8 to possesses] with intent dis- (a) Any person who ... substance ... within one thou- tribute ... a controlled (1) sand a ... school punishable by ... is ... feet of... fine, imprisonment, up a term of or or both to twice that title, by any authorized ... this at least twice 401(b) release authorized section supervised by term of [Emphasis for a first offense. added.] 845a(a). 21 U.S.C.S. § Crew, in U.S. interpreted
The federal statute was (5th Cir.1990).9 F.2d 980 The court stated that 845a was § “drug-free enacted to a zone” around and to create schools signal to drug presence send a clear dealers that their would not be within a to schools. proximity tolerated certain The also stated the equally Id. court that statute was applicable and after hours. The court before school Id. further or penalty applied stated that would be whether that not the violator knew he within feet one-thousand of a school. Id. Holland, (D.C.Cir.1987),
In U.S. v.
(S.D.N.Y.1990). The defendant not claim Roberts did that he should have he was possessing drugs known that within feet of or one-thousand a school that he should have known that nearby there was school order have intended to near a inter- distribute school. defendant preted the he statute mean that could not found to have 845a violated unless he intended to distribute § drugs within one-thousand of a feet school.
stated that since the ambiguous statute was the court would apply the rule of which lenity, dictates ambiguity be resolved favor of the Id. The defendant. conviction, district court stating reversed the defendant’s that the must require statute be read to intent distribute drugs within one-thousand feet a school. present
9. There are at no Third Circuit cases that have discussed or interpreted 21 U.S.C.S. 845a. *9 None of the aforementioned federal cases addressed ap- prosecution instant claim that pellant’s specific prove intended to be within one- required feet of a school.10 thousand “Possession with intent phrase controlled substances” is a used to character- deliver 780-113(a)(30). specific Equivalent ize a crime. 35 Pa.S. § 303.9(c)(2): in 204 “possesses phrasing is found Pa.Code § a with intent to deliver controlled substance within added). (Emphasis arrange- feet of a ... school[.]” 303.9(c)(2) ment of the refers to the crime clearly words § “possession with intent to deliver” when it is committed feet of school. There within one-thousand a is no reference to a defendant’s intention to be within one-thousand feet of school, nor a reference a is there to a defendant’s intention actually drugs guideline distribute within that zone. The does not read intent to “possession, with deliver within feet of a school.” Our of the interpretation meaning 303.9(c)(2) is consistent enunciated in viewpoint with purpose type the aforementioned federal cases: The of this drug-free of sentence enhancement should to create a signal drug zone around schools and to traffickers zone presence subject longer their this would them Hence, upon reject appellant’s sentences conviction. we prove claim that the Commonwealth must that a defendant intended to be within one-thousand feet of a school. Ac- cordingly, requiring the trial court did not err Commonwealth to do so. of controlled
Appellant’s possession sentences sub- stances and of controlled with intent substances vacated; to deliver are case remanded to the trial court with this is opinion. instructions consistent with Jurisdiction relinquished.
KELLY, J., concurring a statement. files 10. The court in Roberts focused on whether that defendant intended actually drugs to did distribute within one-thousand feet of a school. It involving happened simply not address a claim defendant who "coincidence,” regardless to be within the zone because of or not he intended to of whether actually drugs distribute the zone. within statement: KELLY, Judge concurring *10 majority’s of the well reasoned aspects I in all join recog- has to appellant’s counsel failed opinion. Although of illegality the the sentences which challenge nize and claim may is that we the merged, it clear raise should have of notwithstanding the failure counsel to appellant Moreover, regard appel- to an with present argument. such his sen- challenges aspects the of discretionary lant’s to tence,1 the trial court confused the it is apparent sentencing guideline enhancement with effect of a intended mandatory effect of a sentence. the intended considered; an increased sentence be former mandates that a minimum imposed. mandates that sentence be the later Brown, 369, 587 Pa.Super. 402 A.2d v. See Commonwealth 370, Kreiser, 582 (1991); Pa.Super. 399 6 v. Commonwealth (1990). Supreme Court A.2d As the United States 387 guidelines enhance- explained, Pennsylvania sentencing the the for the defendant simply “ups ment ante” of the enhancement’s intent. found to within the ambit be 89, 79, 2411, 477 U.S. 106 S.Ct. v. Pennsylvania, McMillan 2417, (1986) Pennsylva- 67, (holding 78 that the 91 L.Ed.2d right the weapons enhancement does not violate nia deadly process). to due error, however, I in the court’s
I find no trial note that enacting sentencing intent in legislature’s reliance on the attempt comply with agree failure to even to 1. While I 2119(f) ability hamper our to review the instant does not Pa.R.A.P. sentence, discretionary aspects it be noted challenge of should to efforts to appellant’s claim is based on that our decision to review economy powerless promote judicial a to fault reluctance procedural offending default. Common counsel's See 458, 1, 930, Ciotto, Pa.Super. 931 n. 1 461 n. 555 A.2d wealth v. 382 120, 125, Osteen, (1989); Pa.Super. 381 552 A.2d 1124, (1989). past, it should This Court has not in the nor 1126 now, apparent contempt for the rules and seen countenance such to by Supreme See procedure promulgated Court. Commonwealth our Rather, Tuladziecki, (1987). 17 it remains v. Pa. A.2d 513 522 although simply waive the defect instant true that this Court chose discretion, quash appeal for ly, right, it in its reserves sound supple compliance or form of such defects direct immediate Penrod, 2119(f) See v. statement. Commonwealth mental Pa.R.A.P. 221, 228-30, (1990) cases). (citing Pa.Super. A.2d 490 effectively enhancements which create “drug free school recognized, zones.” As the trial court such enhancements unquestionably put force an attempt protect were irrefutably our from the colossal and youth catastrophic Ramos, See drugs. of Commonwealth consequences 583, 585-89, 573 A.2d 1029-30 (citing authorities). upon Incumbent the sentencer is of course the obligation to due pay deference to the intent and effect Indeed, legislation. such for the trial court to have dis- regarded such a factor would well have been an abuse of discretion, as recently this Court held: destructive character such activity [drug sales] being
the well so society is well documented as *11 require further documentation here. To ignore the provi- sions established law by controlling hopefully deterring such brings behavior into judicial process question and undermines the confidence of in the society judiciary, bringing encouragement while solace and drug peddlers. Rosario, 583 A.2d (footnotes omitted) Taniilia, J.). (per