*1
24,
2000,
I am unable
N.T.,
Accordingly,
at
29.
Jul.
permanent
of a
grant
majority
approving
join
presented.
on the record
injunction
dissenting opinion.
this
joins
NIGRO
Justice
Decided Dec. *3 DeRiso, Pittsburgh,
Jerome for Joseph Scolieri. DiCicco, Sally Kaye, Pittsburgh, Carla M. Katherine of Pennsylvania. ZAPPALA, C.J., CAPPY, CASTILLE, NIGRO, Before NEWMAN, EAKIN, SAYLOR and JJ.
OPINION Justice NEWMAN.
Notwithstanding the seriousness with which we consid problem er of underage drinking, accept must that we statute, when Assembly the General selects words to use in a 1921(b). it has purposefully. chosen them 1 Pa.C.S. We change cannot those words to public policy reflect our own concerns, nor can we edit supposition them based on the we know what Assembly say the General meant when something Where, said here, different. we do not believe application of the words of the General would yield an result, absurd unconstitutional we accord them plain meaning, their even if may we have drafted the statute differently. §§ 1 Pa.C.S. 1922. For the reasons set herein, forth we reverse the Order of the Court. appeal This interpretation involves the of Section 6310.1(a), 18 Pa.C.S. “Selling entitled furnishing liquor minors,” or malt or beverages brewed (hereinaf- which the Commonwealth Joseph contends Scolieri ter, Appellant) violated. provides, pertinent The statute part: person commits a
[A] degree misdemeanor the third if he *4 intentionally and knowingly sells or and know- ingly furnishes, or purchases with the intent to or sell furnish, any liquor or malt or beverages person brewed to a who is years age. less than 21 of added).1 (emphasis
Id. Although the trial court convicted 6301(a) Appellant violating of Code, Section of the Crimes 6310.1(a), § 1. 18 Pa.C.S. charged the offense that the Commonwealth with, Appellant 4-493(1) distinguished should be from Section of 662 prove beyond to “failed that the Commonwealth
found that defendant knew doubt reasonable for us is years age.”2 question 21 of than The served was less 6310.1(a) Code of the Crimes the terms Section whether knew Appellant required the Commonwealth minor.3 was a purchaser that the AND HISTORY FACTS PROCEDURAL 18, 2000, Appellant February police arrested On 4-493(1) of him with violation charged 26, 2000, right his to a Appellant waived September Code. On County Allegheny proceeded and the case before jury trial Pleas, Raymond A. Novak. Judge Senior of Common Fosnight testify at trial was Joshua first The witness Josh), who, charges to the (hereinafter, at all times relevant explained years age. was sixteen Josh against Appellant, early Novem- September in late that he first met 1999, Gaslight Bar at Steak House Lodge at the Econo ber Bar). (hereinafter, Township Josh Hampton located amended, § April 47 P.S. 4— Liquor P.L. Act of nevertheless, but, 493(1), a mens rea which does not have furnishing agents liquor and their permits prosecution of licensees pertinent Liquor provides, in 4-493 of the Code to minors. Section part: unlawful— It shall be board, agent (1) any employe[e], any or servant or licensee or the For board, sell, any person, furnish or other such licensee or of any beverages, permit any liquor malt or or to give or brewed sold, given, beverages furnished or liquor or brewed to be or malt intoxicated, any any person, or to any person visibly or to insane drunkards, minor, intemperate persons known habitual or to habits. 4-493(1). §
47 P.S. discretion and findings the trial court were within its of fact of 2. Accordingly, presented we are evidence at trial. with the consistent 605, by Dillabough, 552 Pa. 716 A.2d them. v. bound Triffin (1998). of the third is a misdemeanor Violation of 18 Pa.C.S. 3. year. Pa.C.S. maximum sentence of one degree, which carries a period of Appellant to serve a The trial court sentenced thirty days one-year probation. incarceration of 17, 2001). (C.P.Pa. Scolieri, April slip op. at 5 filed No. 199901978 *5 that a from stated friend work him to Appellant introduced Appellant and told to take care of him. Josh that at testified time, no including during meeting, the initial did Appellant ask him for identification and Josh him showing any. denied ever Nevertheless, Josh said that Appellant from time to time sold alcohol, him which always Josh claimed out he took of the Bar. Josh testified that on February at approximately P.M., Bar, 7:30 he to paid $30.00, went Appellant Appellant provided him with a bottle of Absolut Vodka. Josh got further testified that he girlfriend’s then into his truck (she waiting him), had been gas to a drove station to purchase cups and, and orange juice together, they proceeded to finish the entire bottle of vodka. two then went to dinner and on way they stopped home back at the Bar purchased vodka, where Josh another bottle which said his girlfriend wanted for the weekend. Josh went at home approximately 11:00 P.M.
Josh’s father Timothy Fosnight (hereinafter, Mr. Fosnight), arresting officer were testify. the next witnesses to Fosnight Mr. told the court that he noticed an obvious smell of alcohol on his son’s breath when Josh entered his bedroom and leaned over him to give him a goodnight. kiss Josh to admitted his father purchased that he alcohol from Appel- lant. Fosnight Mr. called police and arranged for Josh to return to very the bar the night same purchase to a case of Appellant. beer from Bar, police Close made sure that Josh had no identification and Fosnight provided Mr. him with purchase $50.00 alcohol from Appellant. Police allowed Josh to drive his car the Bar. Josh entered the Bar and Mr. Fosnight and his wife watched in proximity close they where soon Appellant witnessed placing a case of beer into car that his son had been driving. Police then arrested Appel- lant.4
At the conclusion of testimony arresting officer, of the the Commonwealth rested its Appellant case and moved for a Appellant stipulated that the transaction occurred so as to avoid the testimony of Josh’s positioned aunt who had herself at the bar when purchase Josh entered beer. argued charges
judgment acquittal. Counsel be statute the against should dismissed because the under, him prosecute chose Code, required that the Common- *6 knowingly beverage prove Appellant provided the wealth that had prove a that the Commonwealth failed to to minor and acquit- The trial court denied the motion for knowledge. was forced to his Appellant present tal and case. that on own behalf. He claimed
Appellant then testified his Also, 18, 2000, he was a bartender at the Bar. February on that at Bar several Appellant explained he met Josh the Appellant requested, months at which and Josh earlier time him, According of provided proof age. Appellant, with the twenty-two that old. years identification indicated Josh was midnight that at on Febru- Appellant approximately admitted ary had into the bar and asked to Josh come purchase Appellant explained of beer.5 that when Josh case it into money, placed him sold Josh a case of beer and gave he testify that Appellant the trunk car. on to he of Josh’s went knowing and he was everybody,” “cards denied that Josh that underage, and stated he did not intend serve someone was underage. who case, Appellant that
Upon resting requested- his counsel charges had be dismissed because the Commonwealth mens rea statute, prove of which failed Ap- required prove he the Commonwealth that contended a minor. pellant knowingly response, sold alcohol to In Specifi- than age. court that Josh looked older his observed cally, that: the court found young very big man upon my view this who is
[Biased young man, although my opinion any it was that would him would be advised to bartender serve well very, teenager appear very big card him he is a and does stated, age. than actual older than his his (Notes 62.) Testimony September 2000 at The court a matter of fact that the “Commonwealth has then found as Appellant any liquor. denied that sold the vodka or other
665 beyond a reasonable doubt that defendant failed to person years age.” served was less than knew that Nevertheless, interpreted way statute6 such a so Id. explained: trial court Appellant. to convict The My finding requires is that the statute that the Common- doubt that prove beyond a reasonable the defendant wealth liquor or malt furnished bever- age person, “intentionally” to a and that the words “knowingly” modify word “furnished.” plain reading I find that the the statute does not prove that that the Commonwealth the defendant knew years age. was 21 at 8. Opinion April Trial Court dated affirmed, on Superior The but somewhat different Scolieri, 2001, slip No. 45 grounds. Commonwealth WDA 23, 2001). op. (Pa.Super. at 1 filed December *7 interpreted person words “a commits a Court the misdemean- intentionally knowingly degree or of the third if he and sells ... any liquor beverages person or malt or brewed to a who is 6310.1(a), years age,” than 21 of 18 (emphasis less Pa.C.S. added) prove beyond to mean that Commonwealth must a “the person beverages reasonable doubt that the sold ... alcoholic or or have person when he she knew should known that the or ... beverage to whom sold the was a minor.” [he she] Scolieri, (emphasis original). No. 45 WDA 2001 at 5 in Al- though Superior recognized the that Court the trial court had determined that the that Commonwealth had failed minor, Appellant Superior knew that Josh was a Court opined Appellant that should known that have Josh was a and, therefore, upheld minor conviction. granted allocatur to
We consider whether 6310.1(a) interpreting erred in Section prove only that the Commonwealth person knew or should have known that whom alcohol was a minor. furnished was 6310.1(a). 6. 18 Pa.C.S.
666
DISCUSSION case, Assembly words In this the General used the “intentionally knowingly” and that would describe behavior imposition penalty. Appellant of a criminal is warrant 6310.1(a) charged with a violation of Section of the Crimes Code, selling furnishing liquor beverages or or malt or brewed provides: statute to minors. The degree third if person commits misdemeanor [A] intentionally intentionally knowingly and sells or furnishes, knowingly purchases with intent to sell furnish, any liquor beverages person or malt or to a brewed 21 years age. who is less than added). observed, (emphasis Id. As we often when a have case, bearing begin by has a on the of a we statute outcome analyzing express words of the statute. Kmonk Sullivan Co., 514, Pa. A.2d v. State Farm Mutual Auto. Ins. 567 788 (2001). 955, concerns, constitutional con- 959 Absent we are altering plain reading from those words unless a strained 1921(b), yield §§ an 1 them would absurd result. Pa.C.S. 1922(1). case, application In this we do not believe that of the Assembly yield an words of the General would absurd result. in provides, pertinent part, Section that “a ... person commits a misdemeanor if he ... any liquor beverages sells or malt or brewed years age.” pointed who is less than 21 As we out Koczwara, 825, 575, 155 in 397 Pa. A.2d 829 denied, (1959), cert. 363 U.S. 80 S.Ct. L.Ed.2d (1960), the General has drafted some statutes requirements mens rea that do not. include others example, explained: For there we Code,] Liquor legislature 493 of the has [That *8 twenty-five specific set forth acts which are condemned as unlawful, in penalties provided and for which are Section (1) (14) 493 contain the two Subsections Section charged Koczwara In sub- [in ]. offenses neither these any which language require sections is there would willfully prohibited knowingly, acts to have been done either a intentionally, being significant or there absence of such ‘knowingly, willfully, legislature words as That etc.’ intended such a in other sections of related 492(15), by examining same Code is shown wherein knowingly any beverages is made unlawful sell malt person engaged a in illegally selling the business of beverages. any in The omission such word the subsec- highly significant. tions of Section 494 is It indicates legislative knowledge intent eliminate both and criminal necessary ingredients intent as of such offenses. (emphasis original).
Id. at 829 in We reasoned that some Assembly any requirement statutes the General has omitted prohibited knowingly intentionally acts be done or where- inas others it has made it unlawful to if only do other acts they performed knowingly. were Compare 47 P.S. 4- 493(1) (14) 4^92(15). §with We then concluded that — omission of “knowingly” “intentionally” the words from a significant statute is legislative “indicates a intent both knowledge eliminate and criminal necessary” intent as Koczwara, in a prosecution elements of those offenses. A.2d at 829. The converse of this rule is also true. The inclusion of the words in a statute legislative indicates a require intent to the inclusion those mens rea requirements “necessary ingredients of such offenses.” Id.
The trial court convicted Appellant of the offense because it interpreted the “intentionally” words and “knowingly” as mod- ifying the word furnishing expressing and not any require- ment a defendant know that provided he or she beverage Superior to a minor. The Court took a different approach, but upon affirmed the conviction based determina- tion that Assembly the General “intentionally meant the words and knowingly” merely that a defendant knew or should have known that buyer reject was a minor. We both formulations.
Essentially, Court determined that the General did not mean what it said and read the words “intentionally knowingly” to mean “knew or should Scolieri, have known.” 45 WDA 2001 at 5. This was error. *9 668 to Superior gave construction Court
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Compounding by trial court. findings factual not reached implicitly made “should found that Specifically, Superior Court provided alcohol to was have known” that the Superior Although reasonably could view the minor. one statute, improved our “interpretation” creating an Court’s for courts should neither act as an editor the Gener appellate court they usurp should the role of the trial al nor proper if it Clearly, as fact-finder. even were have been statute, into Superior language to insert Court upon itself to find should not have taken necessary apply its new law. facts of the
Contrary statutory interpretation to court, mens rea application trial which limited the “furnish,” requirement the word the mens rea applies Indeed, to the entire statute. where the General Assembly sets forth the mens rea requirement for a crime elements, with requirement generally applies several to all 302(d) elements. Section provides: the Crimes Code so *10 § requirements culpability 302. General of (d) culpability Prescribed requirement applies to all materi- al elements.—When law an defining prescribes offense culpability the kind of that is sufficient the commission offense, of an without distinguishing among the material thereof, provision apply elements shall to all the mate- offense, rial of elements a contrary purpose unless plainly appears. 302(d). §
18 Pa.C.S. Because the General has set forth rea requirement the mens knowing of a and intentional to a person sale who is a minor and no “contrary other purpose the mens rea requirement] plainly Id., [of appears,” we hold that offense, conviction of charged forth in set 6310.1(a) Section requires proof the Crimes Code that the sale the minor was knowingly undertak- 6310.1(a). § en.7 18 Pa.C.S. Because the trial court found that the prove beyond Commonwealth “failed to a reasonable doubt that [Appellant] knew that the to whom selling was was than years age[,]” less Trial Court Opinion 8-9, at this statute was not violated.
CONCLUSION The Commonwealth failed to the mens require- rea ment of the statute. Consequently, Appellant’s conviction must be overturned and the determination of Court reversed.
Justice dissenting opinion SAYLOR files a in which Justice CASTILLE and join. EAKIN Again, charged Appellant, agent Commonwealth could have as an licensee, 4-493(1), employee pursuant § of a to 47 P.S. a statute that however, does not contain a requirement; mens rea was not charged provision. with violation of that SAYLOR, dissenting.
Justice require- “intentionally knowingly” that the holding In criminal all elements the substantive applies across ment 6310.1(a) Code, 18 described' Section offense interpretive pro- 6310.1(a), majority invokes the Pa.C.S. that, Code, to the effect 302 of the Crimes of Section visions prescribe the defining an offense statutory terms when the of an is sufficient for the commission culpability that degree of elements, among the material offense, distinguishing without unless all material elements applies to culpability provision Opinion, at 678 Majority op. contrary purpose plain. is See 302(d)). (citing 18 Pa.C.S. however, that position, trial court’s agree
I with the culpability degree to articulate a is not structured contrary, the inten- offense. On the requisite to the overall to the clauses appear apply terms tionally them, describe namely, those which immediately follow to sell furnishing, purchasing with intent selling, the acts of by the beverages. This is reinforced alcoholic or furnish *11 proximity of the salient intent reiteration See 18 Pa.C.S. actions identified. of these alternative each 6310.1(a) “intentionally and (proscribing § “pur- knowingly fumish[ing]” and “intentionally and selling],” furnish”). Additionally, such to sell or "with intent chases of construc- last antecedent rule is consonant -withthe reading Rosenbloom Finance generally Commonwealth tion. See (1974) 907, (stating that 325 A.2d 457 Pa. Corp., no con- phrases, and where qualifying words “referential antecedent, solely last refer to the trary appears, intention word, clause that can be phrase last consists of ‘the which of the impairing meaning the without made an antecedent ” (citations omitted)). Moreover, more reading this sentence’ statute, as the purposes the the closely accommodates court observed: pleas common beyond a required prove were
If the Commonwealth a furnishing alcohol to person doubt reasonable age or she was under the minor knew that he appear- Given the virtually unenforceable. statute would be many young anee of ages men women of 18 between the impossible it would be the offender knew person being that the was age served under the of 21. On hand, quite easy the other it is for the seller to identification before the sale. It seems clear that legislature placed the on person serving burden alcohol age purchaser. determine the appears While it thus culpability me that no terms are expressly indicated with respect to the age-of-the-recipient 302(c) offense, element of the Section of the default, Crimes Code sets forth a degree minimum of culpabil- ity of recklessness for material elements of an reposit- offense ined culpability Crimes Code to which specifical- is not ly prescribed, 302(c), see 18 Pa.C.S. than summary other offenses, 305(a)(1). see 18 Pa.C.S. Although I therefore agree majority with the Court’s order affirmance cannot be sustained on reasoning, the court’s I would whether, remand for a record, determination on this finding mandated,1 of recklessness is may since a valid verdict any proper be maintained for appearing reason as of record. Justice CASTILLE and join Justice EAKIN dissenting this opinion.
1. Under the Crimes recklessness is defined as follows: person recklessly A respect acts with to a material element of an consciously offense disregards when he unjustifiable a substantial and risk that the material element exists or will result from his conduct. that, degree risk must be of considering nature and nature and intent of the actor's conduct and the circumstances him, disregard gross known to its involves a deviation from the standard of conduct that a reasonable would observe in the *12 actor's situation. 302(b)(3). view, arguable, my Pa.C.S. It is at least that a laws, charged bartender who is liquor with observance of the and who requiring served alcohol without patron designated identification to a by “any the factfinder as someone bartender that ... would serve card,” would be well advised to effectively R.R. at has been deemed disregard to have acted in unjustifiable the substantial and risk patron may in fact have been a minor.