Commonwealth v. Cousins, M., Aplt. , 212 A.3d 34 ( 2019 )

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IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 38 MAP 2018
:
Appellee : Appeal from the Order of the Superior
: Court dated January 9, 2018 at No.
: 1411 EDA 2017 affirming the
v. : Judgment of Sentence of the Court of
: Common Pleas of Chester County,
: Criminal Division, dated March 28,
MARKEASE GILBERT COUSINS, : 2017 at Nos. CP-15-CR-1915-2009
: and CP-15-CR-3014-2016
Appellant :
: ARGUED: March 5, 2019
OPINION
JUSTICE TODD DECIDED: July 17, 2019
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:
***
(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.
***
(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.
***
(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
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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, 1411
EDA 2017 (Pa. Super. filed Jan. 9, 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,
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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, 190 A.3d 582 (Pa. 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
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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).
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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
definitions of the term “section” is “[a] part that is cut off or separated,” Appellant contends
“[i]t would be consistent with the common meaning of ‘section’ to interpret the phrase ‘this
section’ to refer to the language of subsection 780-113(b) itself since subsection 780-
113(b) is its own paragraph that is separate from the other provisions of 780-113.”
Appellant’s Brief at 15 (citing https://www.dictionary.com/browse/section).
Moreover, Appellant suggests that the Superior Court’s reliance on its decision in
Pitner was misplaced, as the Pitner court did not specifically address the meaning of the
phrase “under this section.” Appellant further notes that “the Superior Court also
addressed an issue arising under section 780-113(b) in Commonwealth v. Bivens, [651
A.2d 117 (Pa. Super. 1994)],” but he attempts to distinguish Bivens by suggesting that,
while the court therein stated that “this section” refers to 35 P.S. § 780-113 as a whole, it
did not specifically determine the meaning of “this section,” as the issue was not
dispositive to its holding. Appellant’s Brief at 17-18.1 Finally, Appellant asserts that the
Commonwealth’s reliance on Commonwealth v. Lane, 345 A.2d 233 (Pa. Super. 1975),
in its brief to the Superior Court, is misplaced because the court in Lane did not address
the meaning of “this section,” but instead determined whether an individual, who did not
have any prior convictions, was subject to an enhanced sentence where he was found
1 Although initially unclear, Appellant’s reference to the Superior Court necessarily is to
the Bivens court, as the Superior Court below did not mention Bivens.
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guilty of two counts of possession and was being sentenced on both counts at the same
time.
In response to Appellant’s arguments, the Commonwealth maintains that the lower
courts properly determined that the phrase “a violation of this act under this section,” as
contained in 35 P.S. § 780-113(b), clearly refers to 35 P.S. § 780-113 in its entirety, and
is not limited to those offenses specifically identified in 35 P.S. § 780-113(b), which is a
subsection of 35 P.S. § 780-113. In support of its position, the Commonwealth sets forth
numerous instances in 35 P.S. § 780-113 wherein the legislature specifically utilized the
term “section” to refer to 35 P.S. § 780-113 as a whole, the term “subsection” to refer to
35 P.S. § 780-113(a), (b), and so forth; and the term “clause” to refer to a specific
provision of a subsection.
Additionally, with regard to the particular provisions highlighted by Appellant, the
Commonwealth asserts that, “[w]hen these areas are examined, it is clear that the
Legislature was merely, and consistently, using shorthand when discussing a different
Section, Subsection, or Clause.” Commonwealth’s Brief at 21. Specifically, with respect
to the phrase “for purposes of this subsection” contained in 35 P.S. § 780-113(a)(31), the
Commonwealth submits that the legislature is, in fact, referring to 35 P.S. § 780-113(a),
not only to 35 P.S. § 780-113(a)(31). With respect to 35 P.S. § 780-113(n), (o), and (p),
and their reference to “subsections” (a)(12), (14), (16), (30), and (34), the Commonwealth
suggests that the legislature simply is referring to the highest level of the statute −
subsection (a) − rather than writing out “subsection (a), clause (12).” Finally, the
Commonwealth contends that the legislature, in referring to “this section” in 35 P.S. §
780-113(a)(36), intended to refer to 35 P.S. § 780-113 in its entirety, not only § 780-
113(a)(36).
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The instant case presents an issue of statutory construction, which is a pure
question of law. Thus, our standard of review is de novo, and our scope of review is
plenary. Scungio Borst & Assoc. v. 410 Shurs Lane Developers, LLC, 146 A.3d 232, 238
(Pa. 2016). Additionally,
[i]t is well-settled that the object of all interpretation and
construction of statutes is to ascertain and effectuate the
intention of the General Assembly and that the plain language
of the statute is generally the best indicator of such intent. 1
Pa.C.S. § 1921(a), (b). When ascertaining the intent of the
General Assembly, there is a presumption that the General
Assembly does not intend a result that is absurd, impossible
of execution or unreasonable. 1 Pa.C.S. § 1922(1).
Furthermore, the words of a statute shall be construed
according to rules of grammar and according to their common
and approved usage. 1 Pa.C.S. § 1903(a). Every statute
shall be construed, if possible, to give effect to all its
provisions. 1 Pa.C.S. § 1921(a). We will only look beyond
the plain meaning of the statute where the words of the statute
are unclear or ambiguous. 1 Pa.C.S. § 1921(c).
Commonwealth v. Ramos, 83 A.3d 86, 90-91 (Pa. 2013) (quoting Commonwealth v.
Zortman, 23 A.3d 519, 525 (Pa. 2011)). Under the rule of lenity, when a penal statute is
ambiguous, it must be strictly construed in favor of the defendant. Commonwealth v.
Booth, 766 A.2d 843, 846 (Pa. 2001).
Appellant correctly observes that the term “section” is not specifically defined in
the Act. Neither are the terms “subsection” or “clause” defined in the Act. Nevertheless,
upon review of the Act, we conclude that 35 P.S. § 780-113(b) is not ambiguous. Indeed,
in referring to a “violation of this act under this section,” the legislature clearly evidenced
an intent that any violation under the entirety of 35 P.S. § 780-113, and not only those
violations specified in § 780-113(b), would support an enhanced sentence. As explained
above, Section 780-113(b) provides:
Any person who violates any of the provisions of clauses (1)
through (11), (13) and (15) through (20) or (37) of subsection
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(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 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 . . . .
35 P.S. § 780-113(b) (emphasis added).
The legislature used the term “subsection” to refer to § 780-113(a), and the term
“clause” to identify specific numbered provisions of § 780-113(a). Had the legislature
intended the sentencing enhancement to apply only to the offenses specifically listed in
§ 780-113(b), it would have used the phrase “subsection (b)” or “this subsection” instead
of “this section.” Moreover, under the hierarchy of sectional terms, the legislature’s use
of “this section” in conjunction with “this act,” which contains 51 sections, supports an
interpretation that “section” refers to 35 P.S. § 780-113 as a whole, rather than § 780-
113(b) specifically. Indeed, based on our reading, the legislature consistently used the
terms “section,” “subsection,” and “clause” throughout 35 P.S. § 780-113.
While Appellant offers several examples of provisions which he claims illustrate
the legislature’s inconsistent use of the terms “section” and “subsection,” see 35 P.S. §
780-113(a)(31), 35 P.S. § 780-113(n), (o), and (p), and 35 P.S. § 780-113(a)(36), on its
face, the language of those provisions, as noted by the Commonwealth, is clear and
unambiguous. Indeed, in order to support Appellant’s claim that these provisions
demonstrate the legislature’s inconsistent use of the terms “section” and “subsection,” we
would have to interpret them contrary to their plain language. Appellant, however, offers
no support for his non-textual interpretation of those provisions.
For these reasons, we hold that the phrase “a violation of this act under this
section,” as contained in 35 P.S. § 780-113(b), is not ambiguous. Further, based on the
plain language of 35 P.S. § 780-113(b), Appellant’s prior convictions under 35 P.S. § 780-
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113(a)(31) and (32) were properly used to enhance his maximum sentence under § 780-
113(b). Accordingly, the Superior Court’s order is affirmed.
Chief Justice Saylor and Justices Baer, Donohue, Dougherty, Wecht and Mundy
join the opinion.
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