Com. v. Miller, F. , 130 A.3d 1 ( 2015 )

J-S60035-15
2015 Pa. Super. 241
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
FREDERICK H. MILLER
Appellant No. 467 EDA 2015
Appeal from the Judgment of Sentence December 8, 2014
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004426-2014
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
OPINION BY OTT, J.: FILED NOVEMBER 20, 2015
Frederick H. Miller appeals the judgment of sentence imposed
December 8, 2014, in the Delaware County Court of Common Pleas. The
trial court conducted a bench trial that same day, and found Miller guilty of
possession of a small amount of marijuana and possession of drug
paraphernalia.1 Miller was sentenced to a term of six months’ probation for
the possession of paraphernalia charge and a $300 fine of the possession of
marijuana charge. He raises one issue on appeal, challenging the sufficiency
of the evidence supporting his conviction of possession of drug
paraphernalia. For the reasons that follow, we vacate the judgment of
sentence on that charge, and remand for resentencing.
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1
35 P.S. §§ 780-113(a)(31) and (32), respectively.
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The facts underlying Miller’s arrest and conviction were summarized by
the trial court as follows:
Officer William McCollum is a police officer with the Yeadon
Borough Police Department and has been so employed for ten to
twelve years. Sergeant Thomas Reynolds has been employed
with the Yeadon Borough Police Department for twenty-eight
years. On April 10, 2014, at approximately 12:14 p.m., Officer
McCollum was on duty and had the occasion to respond to the
area of Darnell Avenue and Yeadon Avenue, in Yeadon, Delaware
County for a call of drug activity around two parked vehicles.
Sergeant Reynolds was also on duty and responded to the same
call in a separate vehicle, arriving around the same time as
Officer McCollum.
Upon arrival, Officer McCollum and Sergeant Reynolds saw
three males outside of a vehicle and another male sitting in the
driver seat of the second vehicle. [Miller] was standing outside
on the passenger side of one of the vehicles, namely a black
Dodge Charger. As the officers approached the males, there was
a strong odor of burnt marijuana in the area around both
vehicles and the males. After smelling the marijuana, all three
males standing outside the vehicles, including [Miller], were
detained. The male inside the second vehicle, last name of
Washington, was asked to step out and was also detained.
The officers asked if anyone had marijuana or any other
narcotics on their person. All of the males responded in the
negative. Officer McCollum asked for consent to search the
vehicles, which were both rentals. The individuals who rented
the vehicles signed the consent to search forms. While
searching the black Dodge Charger, Officer McCollum located a
partially burnt cigar between the driver’s seat and the center
console. Officer McCollum broke part of the cigarette wrapping
open and the contents were field tested.1
__________
1
The suspected marijuana was later sent and tested in the
laboratory. The laboratory report was stipulated to by counsel
for both parties and entered into evidence [at trial].
__________
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Once Officer McCollum realized it was a marijuana
cigarette, he relayed this information to Sergeant Reynolds.
After receiving this information, Sergeant Reynolds informed the
driver of the vehicle that he was under arrest, at which time
[Miller] stated: “No. Those drugs are mine.” Sergeant
Reynolds asked “Are you sure they’re your drugs?” [Miller]
responded, “Yes.” [Sergeant Reynolds testified that Miller then
stated “he didn’t want to see the driver get in any trouble
because the driver was on probation or parole.”] At this point,
Sergeant Reynolds told [Miller] he was under arrest for
possession.
Trial Court Opinion, 4/8/2015, at 1-2 (record citations omitted).
Miller was charged with one count of possession of a small amount of
marijuana and one count of possession of drug paraphernalia. His case
proceeded to a non-jury trial on December 8, 2014. After the trial court
found him guilty of both charges, he was immediately sentenced to a term of
six months’ probation for the paraphernalia charge and a $300 fine for the
simple possession charge. Miller filed a timely motion for reconsideration of
sentence, which the trial court denied on January 13, 2015. This appeal
followed.2
On appeal, Miller challenges the sufficiency of the evidence supporting
his conviction of possession of drug paraphernalia, which was based solely
upon the burnt paper surrounding the marijuana cigarette recovered from
the vehicle. Acknowledging the lack of appellate decisions on this issue,
____________________________________________
2
On February 18, 2015, the trial court ordered Miller to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Miller complied with the court’s directive, and filed a concise statement on
March 9, 2015.
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Miller, claims “the definition of drug paraphernalia as set forth in [35 P.S.] §
780-102 cannot plausibly be interpreted to include that portion of a
marijuana cigarette that is not actually a controlled substance.” Miller’s Brief
at 16. He notes “the burned wrappings of a marijuana cigarette” are not
included in the list of items defined as drug paraphernalia in the statute, and
the Legislature could not have intended to expose a defendant in possession
of “nothing more than a half-smoked joint, to punishment for more than one
crime.” Id. at 15. Rather, Miller asserts the more “reasonable view” is that
“the cigarette (or blunt as the case may be), in all its parts, constitutes
possession of marijuana on the whole[.]” Id. at 16.
In the present case, Miller’s sufficiency argument focuses upon an
interpretation of “The Controlled Substance, Drug, Device and Cosmetic Act”
(“the Drug Act”), 35 P.S. § 780-101 et seq. Accordingly, our review is as
follows:
These are questions of law, to which our standard of review is de
novo and our scope of review is plenary. See Bowling v.
Office of Open Records, 621 Pa. 133, 75 A.3d 453, 466
(2013); Anderson v. McAfoos, 618 Pa. 478, 57 A.3d 1141,
1148 (2012). Additionally, because the legal issues are
premised on the sufficiency of the evidence, the record is read in
the light most favorable to the Commonwealth as verdict winner,
with the benefit of all reasonable inferences therefrom. See,
e.g., Commonwealth v. Pagan, 597 Pa. 69, 950 A.2d 270,
278 (2008).
Moreover, in this endeavor we are guided by the well settled
principles of statutory construction. The purpose of statutory
construction is to ascertain and effectuate the intent of the
legislature. 1 Pa.C.S. § 1921(a). In this respect, the language
of the statute is the best indication of this intent; accordingly,
where the words of the statute are clear and free from all
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ambiguity, the letter is not to be disregarded under the pretext
of pursuing its spirit. Id., § 1921(b). Only in the event of an
ambiguity may we consider other aspects of the statute and the
statutory process, and may we discern the General Assembly's
intent by considering, inter alia, the various factors listed in the
Statutory Construction Act, Id., § 1921(c). See
Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957, 962
(2007).
Generally speaking, under the rule of lenity, penal statutes are
to be strictly construed, with ambiguities resolved in favor of the
accused. Commonwealth v. Lassiter, 554 Pa. 586, 722 A.2d
657, 660 (1998).
Commonwealth v. Lynn, 114 A.3d 796, 817-818 (Pa. 2015).
Miller was convicted of possession of drug paraphernalia, which
entails:
The use of, or possession with intent to use, drug paraphernalia
for the purpose of planting, propagating, cultivating, growing,
harvesting, manufacturing, compounding, converting, producing,
processing, preparing, testing, analyzing, packing, repacking,
storing, containing, concealing, injecting, ingesting, inhaling
or otherwise introducing into the human body a controlled
substance in violation of this act.
35 P.S. § 780-113(a)(32) (emphasis supplied). Section 780-102 of the Drug
Act defines “drug paraphernalia” as follows:
“Drug paraphernalia” means all equipment, products and
materials of any kind which are used, intended for use or
designed for use in … packaging, … storing, containing,
concealing, … ingesting, inhaling or otherwise introducing
into the human body a controlled substance in violation of
this act. It includes, but is not limited to:
…
(12) Objects used, intended for use or designed for use in
ingesting, inhaling or otherwise introducing marihuana,
cocaine, hashish or hashish oil into the human body, such
as:
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(i) Metal, wooden, acrylic, glass, stone, plastic or
ceramic pipes with or without screens, permanent
screens, hashish heads or punctured metal bowls.
(ii) Water pipes.
(iii) Carburetion tubes and devices.
(iv) Smoking and carburetion masks.
(v) Roach clips; meaning objects used to hold
burning material such as a marihuana cigarette, that
has become too small or too short to be held in the
hand.
(vi) Miniature cocaine spoons and cocaine vials.
(vii) Chamber pipes.
(viii) Carburetor pipes.
(ix) Electric pipes.
(x) Air-driven pipes.
(xi) Chillums.
(xii) Bongs.
(xiii) Ice pipes or chillers.
In determining whether an object is drug paraphernalia, a
court or other authority should consider, in addition to all
other logically relevant factors, statements by an owner or
by anyone in control of the object concerning its use, prior
convictions, if any, of an owner, or of anyone in control of
the object, under any State or Federal law relating to any
controlled substance, the proximity of the object, in time
and space, to a direct violation of this act, the proximity of
the object to controlled substances, the existence of any
residue of controlled substances on the object, direct or
circumstantial evidence of the intent of an owner, or of
anyone in control of the object, to deliver it to persons who
he knows, or should reasonably know, intend to use the
object to facilitate a violation of this act, the innocence of
an owner or of anyone in control of the object, as to a
direct violation of this act should not prevent a finding that
the object is intended for use or designed for use as drug
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paraphernalia, instructions, oral or written, provided with
the object concerning its use, descriptive materials
accompanying the object which explain or depict its use,
national and local advertising concerning its use, the
manner in which the object is displayed for sale, whether
the owner, or anyone in control of the object, is a
legitimate supplier of like or related items to the
community, such as a licensed distributor or dealer of
tobacco products, direct or circumstantial evidence of the
ratio of sales of the objects to the total sales of the
business enterprise, the existence and scope of legitimate
uses for the object in the community, and expert
testimony concerning its use.
35 P.S. § 780-102 (emphasis supplied).
Here, the trial court concluded the cigarette paper, which was wrapped
around the marijuana, constituted drug paraphernalia under the Drug Act.
See Trial Court Opinion, 4/8/2015, at 4. Because we find the language of
the statute ambiguous under the facts of this case, we disagree.
Pursuant to the Drug Act, drug paraphernalia consists of “materials of
any kind which are used, intended for use or designed for use in …
containing, … inhaling or otherwise introducing into the human body a
controlled substance[.]” 35 P.S. § 780-102. However, noticeably absent
from the list of paraphernalia items is the paper encasing a marijuana
cigarette. It bears remarking that the statute does include “roach clips” as
paraphernalia, which are defined as “objects used to hold burning
material such as a marihuana cigarette, that has become too small or
too short to be held in the hand.” Id. While we acknowledge the list is not
all-inclusive, clearly, the Legislature’s exclusion of a single marijuana
cigarette or “burning material” from the list of items constituting drug
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paraphernalia is indicative of its intention that those items not be considered
paraphernalia under the Act.
Moreover, our research has uncovered no decisions of this Court
concluding that the burnt paper remnants surrounding one marijuana
cigarette is sufficient to sustain a conviction of possession of drug
paraphernalia. Compare Commonwealth v. Nineteen Hundred &
Twenty Dollars U.S. Currency, 612 A.2d 614 (Pa. Commw. 1992) (holding
packets of rolling papers and cough drop boxes, found with marijuana seeds
during inventory search of vehicle, constituted drug paraphernalia, as
defined in Section 780-102, for purposes of forfeiture of “drug
paraphernalia” under Forfeiture Act, 42 Pa.C.S. § 6801(a)(1)).
Furthermore, we conclude the language of the Drug Act is ambiguous.
Although it defines drug paraphernalia as “materials of any kind which are
used … in containing [or] inhaling … into the human body a controlled
substance[,]” it does not list the burnt paper surrounding a half-smoked
marijuana cigarette – a common item used to hold/smoke marijuana - as an
example of paraphernalia. 35 P.S. § 780-102 (emphasis supplied). See
Lynn, supra, 114 A.3d at 818 (statutory ambiguities are resolved in favor
of the accused).
Additionally, we note that in enacting subsection (a)(31), the
Legislature demonstrated an intention to exempt those who possess a small
amount of marijuana from the more severe penalties attendant to a
conviction of possession of marijuana under subsection (a)(16). See 35 P.S.
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§ 780-113(a)(31) (“The following acts … are hereby prohibited …
[n]otwithstanding other subsections of this section, … the possession
of a small amount of marihuana only for personal use[.]”) (emphasis
supplied). As a panel of this Court stated in Commonwealth v. Gordon,
897 A.2d 504 (Pa. Super. 2006):
[S]ubsection (31) defines an offense for possession of a lesser
amount of contraband, and explicitly provides for a lesser
sanction for that offense [than Subsection (16)], a distinction
that cannot be overstated.
Id. at 509. See id. (vacating judgment of sentence on charge of possession
of marijuana pursuant to subsection (a)(16) and remanding for decision on
charge of possession of small amount of marijuana pursuant to subsection
(a)(31), when Commonwealth stipulated that total weight of marijuana
recovered was 8.67 grams, which fell within small amount proscription in
subsection (a)(31)). Accordingly, where, as here, a defendant is found in
possession of only one partially smoked joint, we find the Legislature did not
intend the defendant face prosecution for two crimes, possession of a small
amount of marijuana under Section 780-113(a)(31) and possession of
paraphernalia under Section 780-113(a)(32).
Therefore, because Miller’s conviction of possession of drug
paraphernalia is based solely on the burnt paper encasing the partially
smoked marijuana cigarette found in the vehicle, we conclude the evidence
was insufficient to support the verdict on that charge. Accordingly, we
vacate his judgment of sentence for possession of drug paraphernalia, and
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remand for resentencing on his conviction of possession of a small amount
of marijuana.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2015
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