Com. v. Davis

• Decision Date: 17 June 1999
• Citation: 734 A.2d 879
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Lawrence W. DAVIS, Appellant.
• Court: Pennsylvania Superior Court

734 A.2d 879

COMMONWEALTH of Pennsylvania, Appellee v. Lawrence W. DAVIS, Appellant.

Superior Court of Pennsylvania.

Submitted February 16, 1999.

Filed June 17, 1999.

Nicole J. Spring, Williamsport, for appellant.

Michael A. Dinges, Asst. Dist. Atty., Williamsport, for the Com.

Before STEVENS, ORIE MELVIN and BROSKY, JJ.

ORIE MELVIN, J.:

¶ 1 Appellant, Lawrence W. Davis, appeals from the judgment of sentence entered on May 14, 1998 in the Court of Common Pleas of Lycoming County, following his conviction of various drug-related offenses. On appeal, the Appellant challenges the discretionary aspects of sentencing. For the reasons that follow, we affirm.

¶ 2 The facts and procedural history may be summarized as follows. On May 15, 1997, at approximately 6:00 p.m., the Appellant sold cocaine to an undercover police officer, Corporal R. Scott Hunter, of the Williamsport Police Department. The sale occurred at the intersection of Campbell and Grace Streets, Williamsport, Lycoming County. The Appellant was charged with one count each of delivery of a controlled substance, possession with intent to deliver a controlled substance, possession of a controlled substance and possession of drug paraphernalia.¹ On May 13, 1998 a jury found the Appellant guilty of all four counts. At the sentencing hearing held on May 14, 1998, the Commonwealth argued for the application of the school enhancement provisions under the sentencing guidelines in 204 Pa.Code § 303.9(c) and 303.10(b) which provide as follows:

§ 303.9 Guideline sentence recommendation: general.

...

(c) Youth/School Enhancement sentence recommendations. If the court determines that an offender violated the drug act pursuant to § 303.10(b), 12 months shall be added to the lower limit of the standard range of the applicable sentencing matrix and 36 months shall be added to the upper limit of the standard range of the applicable sentencing matrix....

204 Pa.Code 303.9(c).

§ 303.10 Guideline sentence recommendations: enhancements.

...

(b) Youth/School Enhancement

(1) When the court determines that the offender either distributed a controlled substance to a person or persons under the age of 18 in violation of 35 P.S. § 780-114, or manufactured, delivered or possessed with intent to deliver a controlled substance within 1000 feet of a public or private elementary or secondary school, the court shall consider the range of sentences described in § 303.9(c).

(2) The Youth/School Enhancement only applies to violations of 35 P.S. § 780-113(a)(14) and (a)(30).

(3) The Youth/School Enhancement shall apply to each violation which meets the criteria above.

204 Pa.Code 303.10(b).

¶ 3 The Commonwealth argued at sentencing that the above guidelines should apply since the drug sale in question occurred within 1,000 feet of St. Joseph's School, a parochial elementary school, which is located on Fourth Street in Williamsport. To support this contention, the Commonwealth presented the testimony of Officer Kim Dockey of the Williamsport Police Department who performed the measurement for the school enhancement. Corporal Hunter had informed Officer Dockey as to the location of the sale and St. Joseph's School. Using a police vehicle equipped with a Vascar unit which was capable of measuring speed and distance, Officer Dockey testified he began his measurement from the street across from the southwest corner of the playground of St. Joseph's School.² He then proceeded to travel west on Fourth Street and south onto Campbell Street to the intersection of Campbell and Grace Streets. He testified the distance from the corner of the playground to where the transaction occurred was .156 miles or 823.68 feet.³ The trial court sentenced the Appellant to an aggregate term of imprisonment of twenty-four (24) to fifty-four (54) months, which included the application of the school enhancement provisions under the sentencing guidelines.

¶ 4 The Appellant raises one issue on appeal. He alleges the trial court erred in imposing a sentence applying the school enhancement provisions of the sentencing guidelines. Specifically, the Appellant claims the measurement should have occurred from the school building rather than the school property. The Appellant also argues the Commonwealth should have used a straight-line measurement rather than a pedestrian measurement. Finally, the Appellant claims the evidence presented at sentencing was not sufficient to establish the drug sale occurred within 1,000 feet of a school.

¶ 5 We recognize the Appellant's claim challenges the discretionary aspects of sentencing. Sentencing is a matter vested in the sound discretion of the sentencing court whose judgment will not be disturbed on appeal absent an abuse of discretion. Commonwealth v. Campion, 449 Pa.Super. 9, 672 A.2d 1328, 1333 (1996), appeal denied, 545 Pa. 668, 681 A.2d 1340 (1996). It is well settled that an appellant does not have an appeal as of right from the discretionary aspects of his sentence. 42 Pa.C.S.A. § 9781(b); Commonwealth v. Rovinski, 704 A.2d 1068, 1075 (Pa.Super.1997), appeal denied, 555 Pa. 707, 723 A.2d 1024, 1998 Pa. Lexis 1410 (1998). Before a challenge to the judgment of sentence will be heard on the merits, an appellant must demonstrate that there is a substantial question that the sentence imposed is inappropriate under the sentencing guidelines. Commonwealth v. Rodriquez, 449 Pa.Super. 319, 673 A.2d 962, 968 (1996), appeal denied, 547 Pa. 754, 692 A.2d 565 (1997). To satisfy this requirement, an appellant must set forth in his brief a concise statement of reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 513 Pa. 508, 513, 522 A.2d 17 (1987). The Appellant in this case has failed to include a Rule 2119(f) statement in his brief.⁴ This omission is not fatal to the Appellant's claim if the presence or absence of a substantial question can easily be determined from the Appellant's brief. Commonwealth v. Maneval, 455 Pa.Super. 483, 688 A.2d 1198 (1997). We will be inclined to allow an appeal where an appellant advances a colorable argument that the trial court's sentence is inconsistent with the sentencing code or fundamentally contradicts norms which underlie the sentencing process. Commonwealth v. Cleveland, 703 A.2d 1046, 1048 (Pa.Super.1997), appeal denied, 555 Pa. 739, 725 A.2d 1218, 1998 Pa. Lexis 1367 (1998). We find the Appellant's challenge to the trial court's application of the school enhancement provisions of the sentencing guidelines raises a substantial question under the sentencing code.

¶ 6 We first address the Appellant's claim the measurement should have occurred from the school building rather than the school property. In determining whether the drug sale took place within 1,000 feet of a school, Officer Dockey measured from the playground area of St. Joseph's School rather than from the school building itself. The Appellant concedes § 303.10(b) is silent as to whether the measurement must begin from the school itself or the real property of the school. As a result, he refers us to the federal provision found at 21 U.S.C.A. § 860, Distribution or manufacturing in or near schools and colleges. Under the penalty provisions of this section, a person is subject to an enhanced sentence if he violates section 841(a)(1) or section 856 of this title by distributing, possessing with the intent to distribute or manufacturing a controlled substance within 1,000 feet of, the real property comprising a public or private elementary school. 21 U.S.C.A. § 860(a). Because the federal provision specifically allows for application of the enhancement to the real property of the school, the Appellant claims the absence of such language in § 303.10(b) should require measurement to take place from the school building itself.

¶ 7 We do not find the absence of the term "school property" in the enhancement provisions to require the measurement to take place from a school building rather than from school property. "The purpose of this type of school enhancement should be to create a drug-free zone around schools to signal to drug traffickers that their presence in this zone would subject them to longer sentences upon conviction." See Commonwealth v. Murphy, 405 Pa.Super. 452, 592 A.2d 750, 755 (1997)

(holding Commonwealth not required to prove for application of school enhancement that defendant intended to be within one thousand feet of a school). We find a school encompasses not only the school building itself, but includes all of the school property located in a zone where children have access such as a school playground. Therefore, measurement from the playground corner was proper, and the trial court did not err in applying the school enhancement.⁵

¶ 8 We strongly disagree with the dissent that the measurement must occur from the school building rather than from the school property. Such an interpretation runs contrary to the purpose of the school enhancement in creating a drug-free school zone. Today many schools of this Commonwealth have campus like settings, which consist of multiple school buildings, athletic fields, stadiums and playgrounds. The school enhancement should be equally applied to a person who sells drugs to a student on the front steps of the school building to the outermost point of school property. Otherwise, the school enhancement would have no effect in deterring drug traffickers from distributing illegal drugs near our schools. If we followed the dissent's position, it would lead to the illogical result that our students could be approached during school hours on the track field located more than 1,000 feet from the main school building, and the drug dealer would escape this sentencing provision. Such a limited application of the school enhancement would not protect our children or make our schools safe from crime.

¶ 9 In addressing the Appellant's...