Opinion
No. 2005 WDA 2005.
Filed: August 14, 2007.
Appeal from the Order entered October 17, 2005, In the Court of Common Pleas of Bedford County, Criminal, No. 430 of 2004.
BEFORE: MUSMANNO, KLEIN, JJ., and McEWEN, P.J.E.
¶ 1 Today we are faced with the unusual question, " When is a location a school bus stop under 18 Pa.C.S.A. § 6314(b)(4)?" Here, Defendant Jeffery Teeter appeals from his judgment of sentence following his convictions for possession with intent to deliver cocaine, criminal use of a communication facility, possession of a controlled substance, corruption of minors, and possession of drug paraphernalia. He challenges the trial court's application of an additional two years of total confinement to his sentence upon finding that his alleged criminal behavior, directed towards a minor, occurred within ninety-two feet of an unmarked school bus stop used by local Chestnut Ridge School District school buses during the school year. The twist to applying the enhanced penalty in this case comes from the fact that at the time of the alleged offense school was not in session; the intended sale occurred during summer vacation at 9:40 p.m. — both facts foreclosing the possibility of school bus service. Because the intent of section 6314, to limit the exposure of drugs to minors in an attempt to promote their protection and well being, would not be furthered under the facts of this case, we reverse and remand for resentencing. In doing so, we specifically hold that section 6314(b)(4) does not apply in cases where drug trafficking to minors occurs within 500 feet of a school bus stop during the evening hours when school is not in session. This decision is in line with the judicial necessity of placing reasonable limitations on our interpretation of our Commonwealth's sentencing enhancement provisions.
We note that the Commonwealth has filed no brief on appeal.
Defense counsel entered into evidence a letter from the Chestnut Ridge School District indicating that the last day of school for the 2003-2004 school year was June 3, 2004. N.T. Sentencing Hearing, 8/1/2005, at 5. The criminal behavior in the instant case occurred four days later on June 7, 2004.
¶ 2 On appeal Teeter also claims that the trial court should have suppressed all evidence from an illegal detention after his car was stopped by officers who stood on each side of his vehicle and parked their cruisers behind him. We find this issue has no merit; however, as stated above, we reverse and remand for resentencing with regard to the sentencing court's application of the mandatory minimum provision found in section 6314.
We note that the sentencing guideline form filled out by the sentencing court does not indicate that a mandatory minimum (such as drugs to minors found in 18 Pa.C.S.A. § 6314) applies to this case. However, despite this lack of notation, Teeter was clearly on notice that the mandatory would be sought as the Commonwealth filed a notice of its intention to seek the mandatory minimum under section 6314.
We note that challenges to a trial court's application of a mandatory sentencing provision implicate the legality of sentence. Commonwealth v. Bongiorno, 905 A.2d 998 (Pa.Super. 2006) ( en banc), citing Commonwealth v. Lewis, 885 A.2d 51, 55 (Pa.Super. 2005). Issues relating to the legality of a sentence are questions of law, as are claims concerning the court's application of a statute. Id. As such, our scope of review is plenary. Lewis, supra.
FACTS
¶ 3 On the evening of June 7, 2004, Teeter made a telephone call to set up a drug sale to S.F., a 17-year-old. S.F. asked Teeter to bring the "powder" to her house; he agreed. Unbeknownst to either of them, S.F.'s father was listening in on another telephone extension. Suspecting his daughter's imminent involvement in drug activity, Father called the police and requested their presence. Father explained to the police dispatcher that his daughter had agreed to purchase drugs from the subject on the other end of the telephone and that this person was on his way to his residence. At the conclusion of his telephone conversation, Father stated that an unfamiliar vehicle was pulling into his driveway, and that he believed this to be the person coming to sell drugs. Teeter was the driver of that car. Teeter and a companion parked in Father's driveway and S.F. walked out to meet them. S.F. and Teeter spoke, but the drug transaction did not occur. At approximately 9:40 p.m., with Teeter still parked in Father's driveway, two state police troopers pulled up and parked their cruisers in the lane leading to the driveway. A few minutes later a police corporal arrived on the scene and parked his cruiser in the lane. At all times, adequate space remained for Teeter to drive his car past the officers and their cruisers.
¶ 4 With Teeter and his companion standing outside of Teeter's car, one trooper asked Teeter why he was there. He told the trooper that he was there to collect money he was owed for selling stereo equipment. Another trooper asked the same question of Teeter's companion while the corporal talked to Father. All of these events in the driveway occurred within twenty minutes, at which point the officers decided to request consent to search Teeter's vehicle. A Waiver of Rights/Consent to Search form was read in its entirety to Teeter, following which he consented and signed the form. When asked, Teeter indicated that he was the owner of the car and all its contents except for a cell phone. At that point Teeter lunged into the open driver's side window, where officers witnessed him reach out his hand and brush a clear plastic baggie containing a white powdery substance off of the seat of the vehicle. After claiming that he had nothing to hide, Teeter reached into his front jeans' pockets and turned them inside out; however, one of the troopers noticed he was concealing a marijuana pipe in his hand. The officers took custody of the pipe and the clear plastic baggie and then gave Teeter his Miranda warnings. Teeter signed a waiver in the presence of two officers.
Miranda v. Arizona, 384 U.S. 436 (1966).
¶ 5 Teeter then confessed that he had called and set up the deal to sell cocaine to S.F. He explained that since she could not leave her house, he went to her residence to conduct the drug sale. Since Father was keeping watchful eye from the garage, Teeter and S.F. had decided to forgo the drug deal. Teeter also volunteered to the police that there was a second baggie of cocaine along with a plastic cut-off straw in his car. When the officers could not find it, he also assisted them in locating it in a felt box hidden under the driver's side seat cushion.
¶ 6 In the days following Teeter's arrest, it was determined that Teeter intended to sell drugs to S.F. ninety-two feet from a place where the local public school bus stopped to pick up and drop off school children during the school year. No sign marked this location as a school bus stop. The school year concluded on June 3rd of that year and, consequently, there were no school children present at the school bus stop on the day of the arrest. At the sentencing hearing, the Commonwealth indicated it would seek that the mandatory three-year minimum sentence be applied to Teeter under section 6314(b)(4).
¶ 7 To support its argument that section 6314 applied, the Commonwealth presented the testimony of a school bus driver from the Chestnut Ridge School District, the district where the arrest took place. The school bus driver testified that during the school year she picks up and drops off approximately 12 students who attend the local public high school. The designated school bus stop where she picks up and drops off the students is located at the end of the Father's residential driveway. She further testified that there are no signs or markings indicating the school bus stop. N.T. Sentencing Hearing, 7/11/2005, at 16. Moreover, during the school year the school bus driver usually picks up the children around 7:30 a.m. and drops them off around 3:40 p.m.
At the sentencing hearing the arresting officer testified that he measured the distance between the bus stop and the residence after being told the location where the minor and defendant were standing. He also verified the location of the school bus stop with the school bus driver. N.T. Sentencing Hearing, 7/11/2005, at 21-22.
¶ 8 The school bus driver also testified that she did not pick up or drop off students at night, and that on the date of the July sentencing hearing the "school bus stop was not there" because there was no school in session at that time. Id. at 17. Moreover, the bus driver testified that she is given a route at the beginning of the school year which is depicted on a chart and that the stops may very well change from year to year depending on different circumstances like traffic patterns, etc. She had been assigned to this particular school bus stop for about ten years. Id. at 18.
PROCEDURAL HISTORY
¶ 9 Teeter filed a pre-trial motion to suppress "any statement made by him to any police officer or other agent of the state and any evidence derived from the Defendant's arrest." This motion was denied at a hearing on January 7, 2005. On March 10, 2005, after a bench trial, Teeter was found guilty of possession with intent to deliver a controlled substance, criminal use of a communication facility, possession of a controlled substance, corruption of minors, and possession of drug paraphernalia. On March 28, 2005, the Commonwealth filed a notice of intention to seek mandatory sentence pursuant to section 6314(a) (relating to Sentencing and Penalties for trafficking drugs to minors) and section 6314(b)(4) (relating to additional penalties). The court ultimately found the mandatory minimum under section 6314(b) applied and sentenced Teeter to three to six years' imprisonment for possession with intent to deliver a controlled substance, running the remaining sentences for all other counts concurrently. On August 10, 2005, Teeter filed a post-sentence motion asserting that the additional mandatory two-year sentence pursuant to section 6314(b)(4) should not have applied in his case. The court denied his motion and this appeal followed.
Specifically, Teeter claimed section 6314(b)(4) did not apply because:
There was no marked school bus stop within 500 feet of the site of defendant's arrest. School was not in session because school had closed for the summer the previous week. School buses did not deliver children after school was closed (late at night and/or after school closed for the summer[)] . Therefore, the location of the defendant's arrest was not within 500 feet of a school bus stop because no such stop existed at that time.
Defendant's Amended Post-Sentence Motions, 8/13/2005, at 2.
DISCUSSION
Enhancement Provision under Section 6314(b)(4)
Section 6314 (Sentencing and penalties for trafficking drugs to minors) states, in relevant part:
(a) General rule. — A person over 18 years of age 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), known as The Controlled Substance, Drug, Device and Cosmetic Act, shall, if the delivery or possession with intent to deliver of the controlled substance was to a minor, be sentenced to a minimum sentence of at least one year total confinement, notwithstanding any other provision of this title or other statute to the contrary.
(b) Additional penalties. — In addition to the mandatory minimum sentence set forth in subsection (a), the person shall be sentenced to an additional minimum sentence of at least two years total confinement, notwithstanding any other provision of this title or other statute to the contrary, if the person did any of the following:
¶ 10 Because the issue regarding section 6314's applicability to a defendant who intended to sell drugs to a minor near a school bus stop during the summer when school was not in session is one of first impression in this Commonwealth, we find support for our decision from statutory interpretation principles, which includes the legislative intent of section 6314 and strict construction of penal statutes, Pennsylvania case law interpreting a related "school zone" statute, and last but certainly not least, old-fashioned common sense.
Section 6314(a) of Pennsylvania's Criminal Code mandates a minimum sentence of one year of total confinement for a person convicted of delivery or possession with intent to deliver a controlled substance when such conduct was directed to a minor. 18 Pa.C.S.A. § 6314. A minor is anyone under the age of 18. Here the evidence proved that the intended buyer was seventeen-years-old; Teeter does not contest that this one-year minimum sentence in section 6314(a) applies to his case. What he does contest, however, is the application of the enhancement provision found within subsection (b)(4) of section 6314, which mandates an two additional years of imprisonment if the proscribed conduct occurred within 500 feet of a school bus stop. 18 Pa.C.S.A. § 6314(b)(4).
1. Statutory Interpretation
¶ 11 Teeter claims that because the offense for which he was convicted occurred during the evening and when school is no longer in session, there was no school bus stop in existence for purposes of enhancing his sentence under section 6314. Because the phrase "school bus stop" is not defined anywhere within section 6314, the statute is unclear on its face as to what exactly constitutes a school bus stop. Therefore, it is incumbent upon us to look to statutory interpretation principles and legislative history to guide us in our resolution of this issue. See Commonwealth v. Campbell, 758 A.2d 1231, 1233 (Pa.Super. 2000) (where term playground in 18 Pa.C.S.A. § 6317 was not defined in statute, court looked to dictionary definitions, plain meaning of term, grammatical context of statute, predecessor version of statute, General Assembly's intent in enacting statute and overall goal and purpose of section 6317); see also Commonwealth v. Bongiorno, 905 A.2d 998 (Pa.Super. 2006) ( en banc) (court looked to case law describing term "playground" found in Drug Free School Zone Act, 18 Pa.C.S.A. § 6317); accord: Commonwealth v. Brice, 856 A.2d 107 (Pa.Super. 2004) (because children in neighborhood routinely played in designated area, it was considered playground for purposes of section 6317).
The term "school bus," however, is defined in the Vehicle Code as a motor vehicle which:
(1) is designed to carry 11 passengers or more, including the driver; and
(2) is used for the transportation of preprimary, primary or secondary school students to or from public, private or parochial schools or events related to such schools or school-related activities.
75 Pa.C.S. § 102 (emphasis added).
¶ 12 This Court has previously considered the rules of statutory construction when discussing the applicability of 18 Pa.C.S.A. § 6317, a related sentencing provision that imposes a mandatory minimum sentence for drugs being sold within a school zone. See Campbell, supra. In Campbell, our Court reiterated the well-established precept that when we interpret a statute we must consider the intent of the legislature and give effect to that intention. Id. Moreover, when the words of a statute are not clear, we must consider the circumstances under which the statute was enacted, the mischief to be remedied, the object to be attained, the consequences of a particular interpretation, the statute's legislative history, and the legislative and administrative interpretations of such statute. Id.
¶ 13 Generally, 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. Presumably every word, sentence or provision in a statute is intended for some purpose. Commonwealth v. Drummond, 775 A.2d 849, 855-56 (Pa.Super. 2001) ( en banc) (quoting Commonwealth v. Campbell, 758 A.2d 1231, 1233-34 (Pa.Super. 2000) (citations omitted) (quotations omitted)). Moreover, the legislature is presumed in drafting the statute, not to have intended an absurd result. See 1 Pa.C.S. § 1922(1); Commonwealth v. Wooten, 545 A.2d 876, 880 (Pa. 1988).
a. Legislative Intent
¶ 14 The legislature's intent behind sentencing enhancements when drugs are being sold near school zones or school bus stops is self-evident — to limit the exposure of illegal drugs to children. The relevant statutes ( 18 Pa.C.S.A. §§ 6317 and 6314, respectively) do so by targeting areas where children are more likely to frequent or be found, such as schools, playgrounds, school buses, recreational centers, school bus stops, etc. By enacting these statutes the legislature has shown an effort to protect and provide for the well-being of our Commonwealth's most precious assets, our children. Campbell, supra.
¶ 15 We find that the phrase "school bus stop," standing alone, is ambiguous as the term is susceptible to multiple interpretations. The term itself is concededly nebulous. Moreover, the fact that the legislature had not defined it in the statute further lends to the lack of a clear answer to the issue in this case.
¶ 16 Chiefly, there is the conundrum of whether in order to classify an area as a school bus stop for purposes of section 6314: (1) there must be the presence of children; (2) a sign marking the area must be found; (3) it only exists during the traditional school year; and (4) when buses are running does it exist only while students are being dropped off and picked up.
¶ 17 Dictionaries offer little help in clarifying the meaning of the term, as the phrases "school bus stop" or even "bus stop" are not commonly defined. The term "stop" when used as a noun has been defined as "a place at which someone or something stops: a regular stop on my paper route; a bus stop." The American Heritage Dictionary of the English Language 260 (4th ed. 2000). This definition at least implies that some regularity of use is required for a place or location to be considered a "stop." Thus, we believe that a common extension of this accepted usage of the phrase would be that a school bus stop is a place at which a school bus makes a regular stop to pick up or drop off school children.
¶ 18 The question remains, however, as to the degree of regularity of use required to make a school bus stop a "school bus stop" for purposes of section 6314. To answer this question we now look to a related statute, 18 Pa.C.S.A. § 6317, which similarly increases the mandatory minimum sentence for a defendant when he or she is found to be trafficking drugs at or near places that children frequent.
¶ 19 While knowledge that one is near a school bus stop is not a requisite for application of the mandatory minimum under section 6314, as the enhancement is not an element of the crime, we must realize the serious consequences of applying an enhancement in the sentencing process. Specifically, the determination as to whether an enhancement like that found in section 6314 applies to a given case "should not be made without careful consideration of the actual circumstances of the case as well as the children the statute was enacted to protect." Commonwealth v. Brice, 856 A.2d 107, 112-13 (Pa.Super. 2004) (Bender, J., concurring). As Judge Bender recognized in Brice:
In order to ensure fair and equal application of the law, it is necessary to find limitations for such broad definitions and adequate evidentiary support to sustain greater terms of imprisonment. . . . The mere presence of children alone cannot give rise to a "playground" absent some additional indications of a designated facility for their recreational use. . . . This concern must be met by sufficient development of the record to ensure that the Commonwealth cannot use this statute to impose additional sentencing where there is no real concern for children nor evidence of a playground.
Enhancement of sentence should only be upheld where there is clear and convincing evidence on the record indicating the presence of a playground. While extending this definition to include a basketball court may be appropriate in the instant case, we must be cautious in our interpretation of statutory language and ensure that the record supports the intent of the statute.
Id. (emphasis added).
b. Strict Construction of Penal Statutes
¶ 20 Moreover, it is well established that penal statutes are to be strictly construed. See 1 Pa.C.S.A. § 1928(b)(1); Commonwealth v. Runion, 628 A.2d 904 (Pa.Super. 1993). The need for strict construction does not require that the words of a penal statute be given their narrowest possible meaning or that legislative intent be disregarded, nor does it override the more general principle that the words of a statute must be construed according to their common and approved usage. Commonwealth v. Booth, 766 A.2d 843 (Pa. 2001). However, where ambiguity exists in the language of a penal statute, such language should be interpreted in the light most favorable to the accused. More specifically, where doubt exists concerning the proper scope of a penal statute, it is the accused who should receive the benefit of such doubt. Significantly, a court may not achieve an acceptable construction of a penal statute by reading into the statute terms that broaden its scope. Id.
¶ 21 Thus, having already determined that the term "school bus stop" as used in section 6314 is ambiguous, our rules of statutory construction prompt us to construe the statute in favor of Teeter.
2. Related Pennsylvania Statute, 18 Pa.C.S.A. § 6317 (Drug-Free School Zones)
a. Scope of § 6317
¶ 22 Under section 6317, a person who delivers or intends to deliver drugs, not to a minor, within 1,000 feet of "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," will receive a mandatory minimum sentence of at least two years of total confinement. 18 Pa.C.S.A. § 6317(a). In Campbell, supra, our Court held that the term "playground" found in section 6317 encompassed more than simply playgrounds on school property, but also play areas found on the real property of semi-private housing and apartment building complexes. Then President Judge Emeritus Vincent A. Cirillo, writing for the majority, noted that the locations specified in section 6317 — school, school bus, recreation center, and playground — follow a "theme" in that they are all "places that one might frequently find children." Campbell, 758 A.2d at 1236. The Court explained that, although a penal statute must be strictly construed, an expansive interpretation of section 6317 best supported the General Assembly's goal and purpose to "protect the children of our communities from the ravages and evils of the illegal drug trade that pervades our country." Id. at 1237.
¶ 23 Subsequent cases have followed Campbell's broad interpretation of section 6317. See Commonwealth v. Hinds, 775 A.2d 859 (Pa.Super. 2001) ( en banc); Commonwealth v. Drummond, 775 A.2d 849 (Pa.Super. 2001) ( en banc). Drummond, however, went one step further, holding that since the purpose of section 6317 was to create a zone which would be free of the attendant harms of the drug trade, section 6317 does not require either the actual presence of school age children at the proscribed locale during the commission of the offense or that the place from which the drugs are sold be accessible to the public, so long as the transaction occurred within that zone. Id. In Hinds, our full Court even went so far as to hold that as long as drugs are recovered from a defendant's residence that is located within the proscribed 1,000 feet under section 6317, that the Commonwealth need not prove that the defendant intended to sell drugs within that zone for the enhancement to apply. Succinctly stated, as long as the drugs are there, that is enough.
¶ 24 While we recognize the expansive interpretation of section 6317 in the aforementioned cases, we point out that application of an enhancement under section 6314 differs significantly from one under section 6317. To begin with, section 6314 requires the presence, or at least the intended presence, of a minor for the provision to apply at all. By contrast, section 6317 is designed to protect children from all the attendant harms of the drug trade, Drummond at 857, whether or not a minor is present. Section 6314 is concerned with the actual accessibility of drugs to minors; section 6317 specifically does not apply to actual or intended drugs sales to minors. See 18 Pa.C.S.A. § 6317(a). The Drummond court recognized this important distinction between sections 6314 and 6317, stating:
We note further the enactment of 18 Pa.C.S.A. § 6314 (Sentencing and penalties for trafficking drugs to minors). This section applies when the sale is actually to a minor. The existence of this section, along with the reference to its applicability in § 6317, further supports our findings that accessibility to the drugs by minors is not a factor detrimental to the application of the provisions of section 6317. Rather a separate provision exists to address that offense.
Drummond at 857, n. 7 (emphasis added). Therefore, the legislative intent, as well as prior case law, suggest that section 6314 be read in a more narrow fashion to conform to its specific purpose of preventing actual access of drugs to minors.
b. Nature of "School Zone" versus "School Bus Stop"
¶ 25 Despite the different approach in how sections 6314 and 6317 are applied to sentences, section 6314 admittedly follows a similar theme as section 6317 in that the proscribed locations — public school, private or parochial school, college or university, school bus, and school bus stop — all are places in which children are likely to be found. In fact, a "zone" is defined in Black's Law Dictionary as "an area that is different or is distinguished from surrounding areas." Black's Law Dictionary, 1612 (7th ed. 1999). Thus, a zone is the equivalent to a defined or marked area.
¶ 26 A school commonly has distinctive physical characteristics — such as signs with or without blinking lights to indicate reduced a speed for vehicles, the size and shape of the buildings, a parking lot, athletic fields, and a flag — which aid in identifying it as a school. Additionally, school buildings and their surrounding grounds are commonly used for activities peripheral to the school day or the academic calendar, such as athletic competitions, music and drama productions, community events, and youth camps. School clubs and various local organizations use school buildings and school grounds year-round at potentially any hour of the day. By its very nature a school is used for events without regard to time or season. See Commonwealth v. Lewis, 885 A.2d 51 (Pa.Super. 2005) (holding that a "preschool" is considered a school within meaning of section 6317; church-run preschool not only functions as a school for 2-, 3-and 4-year-olds as well as transitional kindergarten for 5-year-olds, but is also Sunday church school and vacation church school during summer).
¶ 27 By contrast, school bus stops are rarely so distinguishable; unlike a school, playground or recreation center, an unmarked school bus stop is not easily identifiable, if at all. During the off-season months, an unmarked school bus stop which is not functioning during when school is not in session during the summer is not identified. In sum, there is no more a likelihood that children will be noticed or found at or around an area designated as a school bus stop in the summer than at any given section of a sidewalk or roadway in use throughout the year.
¶ 28 In fact, the definition of "school bus" in the Vehicle Code acknowledges that buses transport children to schools or events related to such schools or school-related activities. See 75 Pa.C.S. § 102. It is axiomatic that a school bus is used only when school is in session or a school is being used. This fact is reinforced by the testimony of S.F.'s school bus driver who acknowledged that she did not pick up or drop off students at night and that on the date of the July sentencing hearing the school bus stop was not there because there was no school in session at that time. N.T. Sentencing Hearing, 7/11/2005, at 17.
¶ 29 Moreover, as in the instant case, a school bus stop located at the end of a residential driveway is indistinguishable from the end of any other residential driveway except when children are actually present, be it waiting for the school bus, boarding the bus or departing from the school bus — all events which occur only during the school year.
¶ 30 Taking into account the differing characteristics of a school bus stop from those associated with a "school zone," it logically follows then that unlike the Campbell Court's expansive interpretation of the term playground for purposes of section 6317, such a liberal construction of the phrase school bus stop would not support the General Assembly's goal and purpose of section 6314. Minors will not be any more protected by imposing a greater sentence for dealing drugs in places where minors are not more likely to be found.
¶ 31 Thus, while both sections 6314 and 6317 are intended to protect our children from the harms surrounding drugs, the intent behind the statutes is achieved in different ways. Namely, the "zone" under section 6317 is more broadly defined to effectuate the statute's purpose of limiting general exposure of drugs to places where children tend to frequent; section 6314 is more narrowly tailored to meet its specific goal of limiting drug offenses conducted specifically toward minors. Therefore, it would be consistent to construe the term school bus stop under section 6314 in a way which furthers this more restrictive legislative goal.
To further support a narrower interpretation of the term school bus stop under section 6314 than the more expansive definitions of locations within a school zone under section 6317, we find it telling that the legislature did not provide for enhancement of a defendant's sentence under section 6314 if he or she sells drugs to a minor within so many feet of a non-school-related recreational center or playground like in section 6317. Campbell, supra. This implies that the legislature found it possible to carry out the purpose and spirit of section 6314 by restricting the prohibited areas under the statute to those which relate to schools or school activities. The same is not necessarily true for playgrounds and recreational centers under section 6317. Brice, supra at 112 ("[T] he statute was not limited to school or municipal play areas, but rather, `protects our children in the places where they routinely play.'") (emphasis added) (citation omitted). We also recognize that section 6317 does not specifically proscribe the sale of drugs within so many feet of a school bus stop. However, this is presumably because any area where a school bus under section 6317 would load or unload children (i.e., "stop") would be within 1,000 feet of a school and, thus is implicitly within the Drug-Free School Zone.
3. Practical Interpretation of Section 6314
¶ 32 Finally, we are convinced that common sense dictates that we narrowly construe the term school bus stop under section 6314 and find it not applicable to the facts of the instant case. Some rational connection exists between enhancing sentences for drug offenses occurring within a specified school zone regardless of the time of the year and the protection of children. The areas defined as a drug-free school zone under the statute necessarily attract and have students using them throughout the year, regardless of whether school is in session. However, there is no similar rationale when attempting to apply section 6314 to a drug offense occurring at the end of a residential driveway at 9:30 p.m. during summer vacation. Logically, children will not be likely to play or congregate there any more than they would be in other random places when school is not in session. If we were to define "school bus stop" in such an expansive way, the result would be absurd — something clearly not intended by our legislature. For instance, in the present case there was testimony that buses from the Chestnut Ridge School District stopped at the driveway of every school-aged child. This could potentially place the entire community within 500 feet of a school bus stop. Chestnut Ridge is a relatively small rural environment, but one need only imagine one of the Commonwealth's large urban communities to demonstrate the confusion that could result. Is a public transportation bus stop which is used by school children a "school bus stop"? If so, does it remain one 24-hours-a-day/seven days a week? This places all of center city Philadelphia and all of downtown Pittsburgh, with bus stops at the ends of each city block, within 500 feet of a "school bus stop." Common sense suggests that the general assembly would have made itself clearer if such results were intended. The inherent inconsistency in applying the definition to such circumstances is also heightened by the fact that the location of a school bus stop is often unfixed and changeable from year to year, as testified to by S.F.'s school bus driver in the instant case.
In fact, the arresting officer testified on cross-examination at the sentencing hearing:
Crawford (Defense Attorney): When did you learn that it was a school bus stop? Trooper Hershey: I would imagine that at any point that anyone would have asked me, rural Bedford County pretty much in front of any residence that has any child that goes to public schools has their children picked up in front of their residence or at a location very near by.
N.T. Sentencing Hearing, 7/11/2005, at 22-23 (emphasis added).
We express no opinion on the impact that section 6314 may have outside the facts of the instant case. Thus, this holding is not intended to apply to urban settings or as to whether section 6314 applies on weekends or holidays during the school year.
¶ 33 To ensure a more consistent and logical application of subsection 6314(b)(4), we interpret the term "school bus stop" as a place that only exists when children are more likely to be present — during the school year. While imperfect, this definition would still punish the dealer who targets minors near a school bus stop more harshly than the dealer who does not target minors. Motion to Suppress
Teeter also raises the issue that section 6314 is "overbroad and should be held to be void for vagueness." Appellant's Brief, at 13. However, we need not address this issue, which appears to be based on due process constitutional grounds, because we have already determined that that the claim can be resolved on the principles of statutory construction — a policy favored by our Supreme Court. See Commonwealth v. Long, 922 A.2d 892, 897 (Pa. 2007) (it is policy of Supreme Court to resolve claims on non-constitutional grounds in first instance). See also Commonwealth v. Kennedy, 876 A.2d 939, 949 n. 10 (Pa. 2005); Commonwealth v. Allsup, 392 A.2d 1309, 1311 (Pa. 1978) .
¶ 34 Teeter also contends that from the time the police arrived at Father's residence he was the subject of an illegal arrest and, as such, all evidence discovered by the police should have been suppressed before trial. It was unreasonable, he contends, to believe he was free to leave when officers were on each side of his car with their cruisers parked behind him. This argument fails.
¶ 35 An encounter between police and a suspect may be characterized as a mere encounter, an investigated detention, a custodial detention, or a formal arrest. Commonwealth v. Douglass, 529 A.2d 412, 417 (Pa.Super. 1988). Since a mere encounter carries no official compulsion to stop or respond, it need not be supported by any level of suspicion. Meanwhile, an investigative detention must be supported by reasonable suspicion since it subjects the suspect to a stop and a period of detention. However, unlike a custodial detention or a formal arrest, an investigative detention does not require probable cause because it lacks the same magnitude of coercive conditions. Id. at 418. The court considers the totality of the circumstances to determine if an encounter is investigatory or custodial, but the following factors are specifically considered: the basis for the detention; the duration; the location; whether the suspect was transported against his will, how far, and why; whether restraints were used; the show, threat or use of force; and the methods of investigation used to confirm or dispel suspicions. Id. at 421.
¶ 36 In the present case, the officers responded to a call that someone unknown to Father was coming to his residence to sell drugs to his minor daughter, S.F.. Shortly thereafter, when an unfamiliar car pulled into Father's driveway and parked, police officers suspected the driver of that vehicle was the unknown person. These facts created at least reasonable suspicion that Teeter was the one intending to engage in criminal activity at Father's residence. Once the police arrived on the scene, they talked to Teeter for 20 minutes. Teeter was never prevented from leaving the residence and he was never told by the officers that he was not free to leave. The officers did not use any restraints or any threat of force on Teeter. The police simply asked him questions and requested information. We agree with the trial court that up to the point that the police administered Miranda warnings to Teeter, the police encounter with Teeter amounted to no more than an investigative detention. He was never detained or arrested and, thus, the trial judge was correct to deny Teeter's motion to suppress.
CONCLUSION
¶ 37 After a review of the statutory intent behind sections 6314 and 6317 of our Commonwealth's Criminal Code, the case law interpreting the application of the drug-free school zone enhancement, and general principles of statutory construction and common sense, we hold that section 6314 does not apply to enhance a defendant's sentence when drug trafficking to minors has occurred within 500 feet of a school bus stop during the evening hours of summer vacation. Therefore, we reverse Teeter's underlying sentence and remand the case to the trial court for resentencing. Upon remand the trial judge shall disregard any sentencing enhancement under section 6314(b)(4) in considering the guidelines and imposing a new sentence.
We note that other jurisdictions have, in fact, more clearly defined the term school bus stop when it applies to sentencing enhancements. See Wash. Rev. Code § 69.50.435(1)(c) (statute making it an additional penalty to commit drug offenses (sell, manufacture, deliver, possess or possess with the intent to do so) within 1,000 feet of a school bus route stop designated by the school district; state appellate courts have found Washington's statute clearly defined the term school bus stop as "those designated on the maps school districts provide to the S[uperintendent of] P[ublic] I[nstruction] ."); Nev.Rev.State.Ann. § 453.3345(1)(d) (2005) (statute providing for mandatory increased sentence for any person who violates Uniform Controlled Substances Act within 1,000 feet of school bus stop from one hour before school begins until one hour after school ends during scheduled school days). We merely point out these other states' statutes to illustrate to the legislature that it is possible to define the term school bus stop under section 6314 in a way to provide clarity in its application in cases and uniformity in use.
¶ 38 Judgment of sentence reversed. Case remanded for resentencing. Jurisdiction relinquished.
¶ 39 MUSMANNO, J., joins; McEWEN, P.J.E., files a Concurring Opinion in which MUSMANNO, J., also joins.
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(4) Committed the offense on a school bus or within 500 feet of a school bus stop.
18 Pa.C.S.A. §§ 6314(a) (b)(4) (emphasis added).
¶ 1 The author of the opinion of the majority has proceeded to so thorough and persuasive expression of rationale, that I hasten to join in the conclusions (1) that the interpretation of section 6314(b)(4) of the Crimes Code, 18 Pa.C.S. § 6314(b)(4), is not controlled by an "expansive" construction of section 6317 of the Crimes Code, and (2) that the phrase "within 500 feet of a school bus stop," as used in section 6314, must be construed narrowly. However, I write separately to express the view that since the record reveals that the term "school bus stop" is ambiguous, the "rule of lenity" requires that the ambiguity in a criminal statute be construed in favor of appellant.
¶ 2 Since appellant's challenge to the application of section 6314(b)(4) raises a pure question of law, our standard of review is de novo and the scope of our review is plenary. Commonwealth v. Dickson, 591 Pa. 364, ___, 918 A.2d 95, 100 (2007). It is axiomatic that:
[t] he object of statutory construction is to ascertain and effectuate legislative intent. In pursuing that end, we are mindful that the statute's plain language generally provides the best indication of legislative intent. "When the words of a statute are clear and free from ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." In reading the plain language, "[w] ords and phrases shall be construed according to rules of grammar and according to their common and approved usage," while any words or phrases that have acquired a "peculiar and appropriate meaning" must be construed according to that meaning. Consistent with the Statutory Construction Act, this Court has repeatedly recognized that rules of construction, such as consideration of a statute's perceived "object" or "purpose," are to be resorted to only when there is an ambiguity in the meaning of the words. Pursuant to [ 1 Pa.C.S. § 1921(c)], when the words of a statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.
Commonwealth v. McClintic, 589 Pa. 465, 472-473, 909 A.2d 1241, 1245-1246 (2006) (citations omitted). Further guidance in the construction of a penal statute is found in the rule of lenity, as it provides that "penal statutes must be strictly construed, with ambiguities being resolved in favor of the accused." Commonwealth v. Lassiter, 554 Pa. 586, 593, 722 A.2d 657, 660 (1988) (opinion announcing the judgment of the court); see also: 1 Pa.C.S. § 1928(b)(1).
¶ 3 Section 6314 of the Crimes Code establishes a mandatory minimum term of imprisonment of one year where a person over the age of 18 years is convicted of a violation of delivering, or possessing with the intent to deliver, a controlled substance to a minor. 18 Pa.C.S. § 6314(a). Paragraph (b) of Section 6314 further provides:
(b) Additional penalties. — In addition to the mandatory minimum sentence set forth in subsection (a), the person shall be sentenced to an additional minimum sentence of at least two years total confinement, notwithstanding any other provision of this title or other statute to the contrary, if the person did any of the following:
(1) Committed the offense with the intent to promote the habitual use of the controlled substance.
(2) Intended to engage the minor in the trafficking, transportation, delivery, manufacturing, sale or conveyance.
(3) Committed the offense within 1,000 feet of the real property on which is located a public, private or parochial school or a college or university.
(4) Committed the offense on a school bus or within 500 feet of a school bus stop.
18 Pa.C.S. § 6314(b) (emphasis supplied).
¶ 4 Here, the trial court, in imposing the two-year mandatory sentence prescribed by section 6314(b)(4), concluded that our decisional interpretations of section 6317 of the Crimes Code controlled its determination of whether a school bus stop existed near the site of the transaction, and, based upon the policy expositions set forth in those decisions, ruled that a school bus stop existed within 500 feet of appellant's intended narcotics transaction.
It is distressing that, despite the significant issues of law present in this appeal, the Commonwealth declined to file a brief in support of its position that 18 Pa.C.S. § 6314(b)(4) should apply.
¶ 5 A review of the relevant case law interpreting section 6317 may be summarized as follows:
Section 6317 states in relevant part:
(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), 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 Substance, Drug, Device and Cosmetic Act or other statute to the contrary. . . .
• In Commonwealth v. Campbell, 758 A.2d 1231 (Pa.Super. 2000), this Court held that the term "playground" encompassed "play areas" in "semi-private housing complexes and apartment building complexes." In reaching this conclusion, we rejected the argument of the defendant, as well as the trial court, that the term "playground" referred to a "school-related" playground. Id. at 1235.
See also: Commonwealth v. Brice, 856 A.2d 107 (Pa.Super. 2004), appeal denied, 581 Pa. 696, 864 A.2d 1202 (2005) (holding that an poorly-equipped basketball court where children "routinely play" constituted a playground); Commonwealth v. Bongiorno, 905 A.2d 998 (Pa.Super. 2006), appeal denied, 591 Pa. 688, 917 A.2d 844 (2007) (holding that an area in a residential apartment complex containing a merry-go-round and safety chips was a playground).
• In Commonwealth v. Drummond, 775 A.2d 849 (Pa.Super. 2001) ( en banc), appeal denied, 567 Pa. 756, 790 A.2d 1013 (Pa. 2001), this Court rejected the argument that the legislature, in establishing a 1000-foot "drug free zone" around schools, had intended to include only public areas accessible by school-aged children. Therefore, we held that the "drug free school zone" included a private apartment within 1,000 feet of a school. Id. at 857.
• In Commonwealth v. Hinds, 775 A.2d 859 (Pa.Super. 2001) ( en banc), appeal denied, 567 Pa. 757, 790 A.2d 1014 (2001), a companion case to Drummond, supra, this Court further concluded that the presence of a minor was immaterial to the application of Section 6317, so that the intended point of the delivery was not relevant. Therefore, a defendant was subjected to the mandatory minimum punishment provided for in Section 6317, when he possessed a controlled substance within 1000 feet of a school zone with the intent to deliver, irrespective of whether the record established that he intended to deliver within or outside the school zone.
• In Commonwealth v. Lewis, 885 A.2d 51 (Pa.Super. 2005), appeal denied, 588 Pa. 777, 906 A.2d 540 (2006), this Court concluded that the term "school" encompassed a pre-school.
¶ 6 The above-referenced cases essentially hold that when construing the plain meaning of terms such as "playground," "school," or "within," a defendant is not entitled to the narrowest meaning of those terms. Rather, we have consistently refused to interpret section 6317 in a manner that would be inconsistent with the manifest intentions of the legislature and its overarching policy goals of protecting children from the dangers attendant to the drug trade. However, a close reading of the case law interpreting section 6317 reveals that this Court was never squarely confronted with the question of whether an ambiguous term or phrase should be applied narrowly or expansively.
Underlying our interpretation of the mandatory minimum provisions of Section 6317 is the oft cited rationale set forth by this Court in Commonwealth v. Campbell, 758 A.2d 1231 (Pa.Super. 2000):
We agree that section 6317 is a penal statute; however, strict construction of the statute, in conjunction with a common usage interpretation of the term "playground," supports our interpretation. It is our finding 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 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." 18 Pa.C.S. § 6317 (emphasis added). Furthermore, it protects our children on their way to and from school on their " school bus." Id. (emphasis added). 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." 18 Pa.C.S. § 6317. (emphasis added).
Id., 758 A.2d at 1237 (emphasis in original).
¶ 7 In the present case, the phrase "school bus stop" is susceptible to a myriad of reasonable interpretations, as evidenced, for example, by the testimony of a witness for the Commonwealth, a school bus driver for the Chestnut Ridge School District, who opined that, because school had recessed for the summer, no school bus stop existed within 500 feet of the place of appellant's intended delivery of the controlled substances to a minor. Consequently, the record here presents ambiguity in the meaning of the phrase "school bus stop," since as applied, its existence could depend upon variables such as (1) a point in time, (2) a point upon real property, or (3) a combination of the two. Put differently, the existence of a "school bus stop" may depend wholly upon the time of day or year, depending on whether school is in session, or upon a point of real property where a school bus might stop on a given day, irrespective of the aspects inherent in the term "school." Thus, I conclude, as does the author of the majority, that the phrase "school bus stop" is ambiguous. Cf.: Commonwealth v. Thomas, 743 A.2d 460, 465 (Pa.Super. 1999), appeal dismissed, 563 Pa. 187, 758 A.2d 1177 (2000) ("We will consider the language of the statute ambiguous only where it will bear two or more meanings").
The author of the opinion of the majority astutely observes other possible reasonable interpretations of the term "school bus," whose plain meaning as a "vehicle that transports students to and from school" could include any mode of public transportation in an urban setting, and a "school bus stop," in such a context, would include virtually every corner of a city. Such an application would all but eliminate the distinctions between paragraph (a) of section 6314 that imposes a one-year mandatory minimum term of imprisonment for the actual or intended delivery of controlled substances to a minor, and the " additional" mandatory minimum term of two years imprisonment prescribed by paragraph (b) for the actual or intended delivery of controlled substances to a minor within the proscribed areas. 18 Pa.C.S. § 6314. Although such an interpretation suggests that section 6314(b)(4) is overly broad on its face and violative of the principle that each provision of a statute have full effect, 1 Pa.C.S. § 1921(a), the facts of this case do not squarely present this Court with such issues.
It bears remarking further that the legislature, in enacting sections 6314(b)(3) and 6317(a) clarified, and plainly intended to disregard, the temporal aspects of the term "school," as it connotes structures and buildings, by proscribing the actual or intended delivery of controlled substances "within 1,000 feet of the real property" on which a "school" is located. 18 Pa.C.S. §§ 6314(b)(3), 6317(a) (emphasis supplied). Textual evidence of a similarly intended expansive interpretation of the term "school" is noticeably absent from the bare reference to a "school bus stop" in section 6314(b)(4). See: Pa.C.S. § 6314(b)(4).
¶ 8 Since the phrase "school bus stop" is ambiguous in the context of the record before this Court, the rule of lenity requires that the ambiguity raised must be resolved in favor of the appellant. The rule of lenity is a rule that ensures "fairness to persons subject to the law by requiring penal statutes to give clear and unequivocal warning in language that people generally would understand, as to what actions would expose them to liability for penalties and what the penalties would be." See: Commonwealth v. Reaser, 851 A.2d 144, 149 (Pa.Super. 2004) (internal quotations and citations omitted). Pursuant to the principle of fair notice, the rule of lenity further provides that "ambiguity concerning the ambit of a penal statute must be resolved in favor of lenity." Id. (internal quotations and citations omitted). See, also: Commonwealth v. Schiffler, 583 Pa. 478, 495, 879 A.2d 185, 195-196 (2005). Here, the ambiguity presented in the test of section 6314(b)(4) precludes a finding that appellant received fair notice that his conduct would expose him to an additional minimum criminal sanction merely because the delivery of a controlled substance was to occur within 500 feet of the real property on which a school bus occasionally stopped.
¶ 9 In summary, I am of the mind that the phrase "school bus stop," as applied in this instance, is palpably ambiguous, and, based upon the principles and canons prohibiting the imposition of criminal punishment upon unreasonably vague penal statutes, the application of mandatory minimum prescribed by section 6314(b)(4) cannot stand.
¶ 10 It is thus that I concur in the result reached by the distinguished author of the opinion of the majority.
¶ 11 MUSMANNO, J., joins.
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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).
18 Pa.C.S. § 6317(a) (footnote omitted).