Com. v. Berryman

• Citation: 649 A.2d 961,437 Pa.Super. 258
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Raymond BERRYMAN, Appellee.
• Decision Date: 01 November 1994
• Court: Superior Court of Pennsylvania

Page 961

649 A.2d 961

437 Pa.Super. 258

COMMONWEALTH of Pennsylvania, Appellant v. Raymond BERRYMAN, Appellee.

Superior Court of Pennsylvania.

Argued April 18, 1994.

Filed Nov. 1, 1994.

George S. Leone, Asst. Dist. Atty., Philadelphia, for the Com., appellant.

Peter Rosalsky, Asst. Public Defender, Philadelphia, for appellee.

Before CAVANAUGH, WIEAND, MCEWEN, CIRILLO, BECK, TAMILIA, KELLY, POPOVICH and SAYLOR, JJ.

KELLY, Judge:

In this appeal we must determine whether persons who have been charged with violating 35 P.S. § 780-113(a)(14), (30), or (37) and who plead guilty or nolo contendere to any of these subsections are barred under 35 P.S. § 780-117(1)(vi) from being sentenced to probation without verdict. Our review requires us to interpret 35 P.S. § 780-117(1). After careful consideration, we hold that 35 P.S. § 780-117(1)(vi) does prohibit a person who has pled guilty or nolo contendere to a charge of violating 35 P.S. § 780-113(a)(14), (30), or (37) from being sentenced to probation without verdict. Therefore, we vacate the appellee's, Raymond Berrymen's, sentence of probation without verdict and remand for resentencing.

Appellee, Raymond Berryman, sold two vials of crack cocaine to an undercover police officer on August 29, 1992. Appellee was arrested by backup officers. Appellee was charged with violating subsection (a)(30) of 35 P.S. § 780-113. Appellee pled nolo contendere to the charge. This was appellee's first arrest. Appellee has been certified as drug dependent. At sentencing, appellee received probation without verdict.

The Commonwealth filed a timely petition to modify the sentence which was denied. Timely notice of appeal was filed.

On appeal, the Commonwealth raises in an unsophisticated legal and editorial manner the following issue:

CAN DEFENDANTS, WHO WERE CHARGED WITH DRUG DEALING AND WHO CONCEDED THEIR GUILT BY PLEADING NO CONTEST, REWRITE SECTION 17(1)(VI) AND RECEIVE PROBATION WITHOUT VERDICT, EVEN THOUGH THAT SECTION EXPRESSLY PROHIBITS SUCH LENIENT TREATMENT FOR ANY DEFENDANT "WHO WAS CHARGED" WITH DRUG DEALING, AND EVEN THOUGH THE IMPROPER CONSTRUCTION OF THE SECTION ADOPTED BELOW VIOLATES BASIC RULES OF STATUTORY CONSTRUCTION AND RESULTS IN AN ABSURD INTERPRETATION THAT PERMITS THE INNOCENT TO BE PENALIZED AND THE GUILTY REWARDED?

Commonwealth's Brief at 4.

In essence, the Commonwealth argues that appellee received an illegal sentence as 35 P.S. § 780-117(1)(vi) ("Section 17(1)(vi)") bars him from receiving probation without verdict. Appellee, however, contends that section 17(1)(vi) does not bar a sentence of probation without verdict because he has not been charged with violating 35 P.S. § 780-113(14), (30), or (37) in a previous, unrelated charge. Therefore, appellee concludes, the sentence imposed was not illegal and was within the discretion of the trial court.

Section 17(1) states in full:

§ 780-117. Probation without verdict

Except as provided in clause (1) of this subsection, the court may place a person on probation without verdict if the person pleads nolo contendere or guilty to any nonviolent offense under this act and the person proves he is drug dependent. For the purposes of proving drug dependency, the person must present the testimony of a physician trained in the field of drug abuse. The term of probation shall be for a specific time period not to exceed the maximum for the offense upon such reasonable term and conditions as the court may required. The following shall apply:

(1) The following persons shall be ineligible for probation without verdict:

(i) Any person who has previously been convicted of an offense under this act or similar act of the United States or any other state.

(ii) Any person who has been convicted of a misdemeanor or felony in this Commonwealth or an equivalent crime under the laws of any other state.

(iii) Any person who has been placed on Accelerated Rehabilitative Disposition where the person was charged with a violation of this act or the commission of a misdemeanor or felony in this Commonwealth.

(iv) Any person who is charged with or has pleaded guilty or nolo contendere to multiple offenses which are based on separate conduct or arise from separate criminal episodes such that those offenses could be tried separately in accordance with 18 Pa.C.S.A. § 110 (relating to when prosecution barred by former prosecution for different offense).

(v) Any person who is a dangerous juvenile offender under 42 Pa.C.S. § 6302 (relating to definitions) or who was adjudicated delinquent for conduct which would constitute a violation of clause (30) or (37) of subsection (a) of section 13 of this act.

(vi) Any person who was charged with violating clause (14), (30) or (37) of subsection (a) of section 13 of this act.[ ¹ 35 P.S. § 780-117(1) (footnote omitted) (emphasis added).

The present controversy centers on the words "was charged" in subsection (vi) of section 17(1). The Commonwealth posits that "was charged" should be interpreted to mean "charged in the proceeding in which the trial court wishes to impose a sentence of probation without verdict." Appellee contends that "was charged" refers to "previous, unrelated charges" and only a second charge of violating 35 P.S. § 780-113(a)(14), (30), or (37) would render a defendant ineligible to receive probation without verdict.

This opinion is the first to consider the interpretation of section 17(1)(vi) since the statute was adopted in 1992. ² Superficially, subsection (vi) of section 17(1) appears susceptible to two different meanings, thus, requiring us to interpret section 17(1)(vi).

In a case involving a question of statutory interpretation, we are subject to the rules of statutory construction enacted by the legislature and embodied in 1 Pa.C.S.A. § 1901 et seq. Commonwealth v. Dickerson, 533 Pa. 294, 621 A.2d 990 (1993); Commonwealth v. Grayson, 379 Pa.Super. 55, 549 A.2d 593 (1988); 1 Pa.C.S.A. § 1901. In ascertaining the meaning of a statute, it is our obligation to determine the intent of the legislature and give effect to that intention. Commonwealth v. Runion, 427 Pa.Super. 217, 628 A.2d 904 (1993); Commonwealth v. Lundberg, 422 Pa.Super. 495, 619 A.2d 1066 (1993); Commonwealth v. Grayson, supra; 1 Pa.C.S.A. § 1921(a).

We are to give the words of a statute their plain and ordinary meaning. Commonwealth v. Neckerauer, 421 Pa.Super. 255, 617 A.2d 1281 (1992); Commonwealth v. Johnson, 417 Pa.Super. 636, 612 A.2d 1382 (1992); Commonwealth v. Grayson, supra. The words are to be considered in their grammatical context. 1 Pa.C.S.A. § 1930. The scope of "grammatical context" includes the tenses of verbs used in a statute. See Commonwealth v. Kimmel, 523 Pa. 107, 565 A.2d 426 (1989) (use of the word "violating" means a present violation).

[S]ections of statutes are not to be isolated from the context in which they arise such that an individual interpretation is accorded one section which does not take into account the related sections of the same statute. Statutes do not exist sentence by sentence. Their sections and sentences comprise a composite of their stated purpose.

Commonwealth v. Lurie, 524 Pa. 56, 60, 569 A.2d 329, 331 (1990) (quoting Commonwealth v. Revtai, 516 Pa. 53, 63, 532 A.2d 1, 5 (1987)). An interpretation of the language in a section of a statute must remain consistent throughout the statute. See id.

Additionally, where a section of a statute contains a given word, the omission of such word from a similar section of the statute shows a different legislative intent. Commonwealth v. Taylor, 424 Pa.Super. 181, 622 A.2d 329 (1993). See Novicki v. O'Mara, 280 Pa. 411, 416, 124 A. 672, 673 (1924); Hodges v. Rodriguez, 435 Pa.Super. 360, 370, 645 A.2d 1340, 1345 (1994) ("a change of language in provisions is prima facie evidence of a change of intent"). Where a legislature includes specific language in one section of a statute and excludes it from another, that language should not be implied where excluded. Bureau of Liquor Control Enforcement v. Prekop, 156 Pa.Cmwlth. 250, 627 A.2d 223 (1993). Furthermore, we may not add provisions which the legislature has omitted unless the phrase is necessary to the construction of the statute. Commonwealth v. Reeb, 406 Pa.Super. 28, 593 A.2d 853 (1991); Commonwealth v. Scott, 376 Pa.Super. 416, 546 A.2d 96 (1988), allocatur denied, 522 Pa. 612, 563 A.2d 497 (1989). See Commonwealth v. Rieck Investment Corporation, 419 Pa. 52, 213 A.2d 277 (1965) (it is not for courts to add to a statute, by interpretation, a requirement which the legislature did not see fit to include); Kusza v. Maximonis, 363 Pa. 479, 70 A.2d 329 (1950) (court cannot supply omissions in a statute by its powers of construction where it appears the omission was intentional). If a phrase is necessary, it may be added but only if the addition does not affect the scope of the statute. Id. See also Commonwealth v. Fisher, 485 Pa. 8, 400 A.2d 1284 (1979). See Garcia v. Community Legal Serv. Corp., 362 Pa.Super. 484, 524 A.2d 980 (1987), allocatur denied, 517 Pa. 623, 538 A.2d 876 (1988) (adding the word "physical" to the term "injury" improperly limited the scope of the statute). The addition may not conflict with the obvious purpose and intent of the statute. Commonwealth v. Scott, supra.

Further, a statute should be interpreted as a whole, Commonwealth v. Lurie, supra; Commonwealth v. Biddle, 411 Pa.Super. 210, 601 A.2d 313 (1991); giving effect to all of its provisions if possible. Commonwealth v. Brown, 423 Pa.Super. 264, 620 A.2d 1213 (1993); Commonwealth v. Grayson, supra. Every word, sentence or provision of a statute is intended for some purpose and accordingly must be given effect. Commonwealth v. Lobiondo, 501 Pa. 599, 462 A.2d 662 (1983). See Commonwealth v. Pierce, 397 Pa.Super. 126, 579 A.2d 963 (1990), allocatur denied, 527 Pa. 609, 590 A.2d 296 (1991) (legislature must be presumed to have intended every word of the statute to have effect); ...