Commonwealth v. Cousins

212 A.3d 34

COMMONWEALTH of Pennsylvania, Appellee

v.Markease Gilbert COUSINS, Appellant

No. 38 MAP 2018

Supreme Court of Pennsylvania.

Argued: March 5, 2019

Decided: July 17, 2019

Kristine C. Mehok, Esq., Chester County Public Defender's Office, John R. Merrick, Esq., for Appellant Markease Gilbert Cousins.

Nicholas J. Casenta Jr., Esq., Erik Thomas Walschburger, Esq., Chester County District Attorney's Office, Thomas P. Hogan Jr., Esq., for Appellee Commonwealth of Pennsylvania.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE TODD

In this appeal by allowance, we consider whether the Superior Court erred in affirming the trial court's application of the enhanced sentencing provision in Section 780-113(b) of the Controlled Substance, Drug, Device and Cosmetic Act ("Act"), 35 P.S. §§ 780-101 et seq. For the reasons that follow, we conclude the Superior Court's decision was correct, and, thus, we affirm its order.

As the instant matter concerns the interpretation of the Act, in particular Section 780-113(b), it is helpful first to set forth the following provisions:

§ 780-113. Prohibited acts; penalties

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:

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(16) Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act.

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(31) Notwithstanding other subsections of this section, (i) the possession of a small amount of marihuana only for personal use; (ii) the possession of a small amount of marihuana with the intent to distribute it but not to sell it; or (iii) the distribution of a small amount of marihuana but not for sale.

For purposes of this subsection, thirty (30) grams of marihuana or eight (8) grams of hashish shall be considered a small amount of marihuana.

(32) 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.

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(b) Any person who violates any of the provisions of clauses (1) through (11), (13) and (15) through (20) or (37) of subsection (a) shall be guilty of a misdemeanor, and except for clauses (4), (6), (7), (8), (9) and (19) shall, on conviction thereof, be sentenced to imprisonment not exceeding one year or to pay a fine not exceeding five thousand dollars ($5,000), or both, and for clauses (4), (6), (7), (8), (9) and (19) shall, on conviction thereof, be sentenced to imprisonment not exceeding three years or to pay a fine not exceeding five thousand dollars ($5,000), or both; but, if the violation is committed after a prior conviction of such person for a violation of this act under this section has become final, such person shall be sentenced to imprisonment not exceeding three years or to pay a fine not exceeding twenty-five thousand dollars ($25,000), or both.

35 P.S. § 780-113(a) - (b) (emphasis added). Relevant to the instant case, the language emphasized above allows for an increased maximum sentence of three years imprisonment under certain circumstances.

Turning to the facts of this case, on July 21, 2016, Appellant Markease Cousins was arrested on an active bench warrant. A search incident to arrest revealed that Appellant had in his possession 1.75 grams of cocaine. As a result, Appellant was charged with, and convicted of, possession of a controlled substance, 35 P.S. § 780-113(a)(16). As the conviction constituted a violation of Appellant's probation for a prior conviction for conspiracy to commit burglary, on March 28, 2017, the trial court sentenced Appellant to a term of one to five years incarceration for violating his probation. With regard to Appellant's new conviction for possession of a controlled substance, the trial court imposed an additional sentence of one to three years incarceration based on the pre-sentence report which indicated Appellant had previously been convicted of possession of a small amount of marijuana and possession of drug paraphernalia, 35 P.S. § 780-113(a)(31) & (a)(32). Specifically, the trial court applied the enhanced sentencing provision of 35 P.S. § 780-113(b), which, as noted above, provides "if the violation is committed after a prior conviction of such person for a violation of this act under this section has become final, such person shall be sentenced to imprisonment not exceeding three years ...." Id. § 780-113(b).

Appellant appealed his judgment of sentence to the Superior Court, which affirmed in a unanimous, unpublished memorandum opinion. Commonwealth v. Cousins , 183 A.3d 1041 (Pa. Super. 2018). On appeal, Appellant claimed that the maximum sentence for possession of a controlled substance is one year; that the enhanced sentencing provision of 35 P.S. § 780-113(b) does not apply to him; and, therefore, that his sentence is illegal. Specifically, Appellant argued that his prior convictions do not constitute violations "of this act under this section" because his prior convictions are not included in the clauses specifically identified in 35 P.S. § 780-113(b). Appellant further asserted that, while 35 P.S. § 780-113(b) technically is a subsection, the terms "section" and "subsection" are often used interchangeably in common parlance and throughout other provisions of the Act. As a result, Appellant contended there is an ambiguity in the phrase "a violation of this act under this section," and, in accordance with the rule of lenity, its meaning must be strictly construed in his favor. The Superior Court rejected Appellant's claims, relying on, inter alia, its prior decision in Commonwealth v. Pitner , 928 A.2d 1104, 1112 (Pa. Super. 2007) (holding 35 P.S. § 780-113(b) is not ambiguous and rejecting the appellant's argument that the enhanced penalty applies only to defendants who committed offenses specifically enumerated therein).

Appellant filed a petition for allowance of appeal, and this Court granted review to consider the following issue, as framed by Appellant:

Whether the Superior Court erred in holding that the legal maximum sentence under 35 P.S. § 780-113(b) of the Controlled Substance, Drug, Device and Cosmetic Act is three years of incarceration when an individual has prior convictions for possession of paraphernalia, 35 P.S. § 780-113(a)(32), and possession of a small amount of marijuana, 35 P.S. § 780-113(a)(31).

Commonwealth v. Cousins , ––– Pa. ––––, 190 A.3d 582 (2018) (order).

Before us, Appellant renews his argument that his prior convictions under 35 P.S. § 780-113(a)(31) and (32) cannot serve as the basis for an enhanced sentence under 35 P.S. § 780-113(b) because the reference in 35 P.S. § 780-113(b) to "a violation of this act under this section" applies only to those offenses specifically set forth in 35 P.S. § 780-113(b). Initially, Appellant acknowledges that, while the term "section" is not defined in the Act, there appears to be a "general vocabulary scheme" in which 35 P.S. § 780-113 constitutes a section ; 35 P.S. § 780-113(a) and (b) constitute subsections ; and 35 P.S. § 780-113(a)(1) through (40) constitute clauses . Appellant's Brief at 12.

Appellant further recognizes that the legislature occasionally uses the term "section" as shorthand for a specific subsection or clause. See , e.g. , 35 P.S. 780-113(a)(37) ("The possession by any person, other than a registrant, of more than thirty doses labeled as a dispensed prescription or more than three trade packages of any anabolic steroids listed in section 4(3)(vii)."). He contends the phrase "section 4(3)(vii)" therein refers to 35 P.S. § 780-104(3)(vii). Appellant's Brief at 14.

However, Appellant maintains that the terms "section," "subsection," and "clause" are not used in a consistent manner throughout 35 P.S. § 780-113. For example, he points to 35 P.S. § 780-113(a)(31), which provides, "[f]or purposes of this subsection, thirty (30) grams of marihuana or eight (8) grams of hashish shall be considered a small amount of marihuana." According to Appellant, 35 P.S. § 780-113(a)(31) is a clause, but is incorrectly referred to as a subsection. Similarly, Appellant observes that, while 35 P.S. § 780-113(n), (o), and (p) provide that any person who violates subsections (a)(12), (14), (16), (30), and (34) with respect to certain chemicals shall be guilty of a felony, the enumerated offenses are clauses, as opposed to subsections.

Finally, Appellant notes that 35 P.S. § 780-113(a)(36) prohibits:

The knowing or intentional manufacture, distribution, possession with intent to distribute, or possession of a designer drug. Nothing in this section shall be construed to apply to a person who manufactures or distributes a substance in conformance with the provisions of an approved new drug application .... For purposes of this section , no new drug shall be introduced ....

Id. § 780-113(a)(36) (emphasis added). According to Appellant, the legislature incorrectly used the term "section" to refer to a specific clause - § 780-113(a)(36).

Based on these alleged inconsistencies, Appellant maintains that the phrase "a violation of this act under this section," as contained in 35 P.S. § 780-113(b), is ambiguous, as it may be interpreted in two different ways: (1) as referring to violations under 35 P.S. § 780-113 generally; or (2) as referring to only those violations enumerated in 35 P.S. § 780-113(b). Appellant reiterates that, where there exists an ambiguity, the rule of lenity requires a narrow construction in his favor. Noting that one of the dictionary...