Commonwealth v. Davis

734 A.2d 879, 1999 Pa. Super. 150, 1999 Pa. Super. LEXIS 1855
CourtSuperior Court of Pennsylvania
DecidedJune 17, 1999
StatusPublished
Cited by12 cases

This text of 734 A.2d 879 (Commonwealth v. Davis) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Davis, 734 A.2d 879, 1999 Pa. Super. 150, 1999 Pa. Super. LEXIS 1855 (Pa. Ct. App. 1999).

Opinions

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, Ly-coming County. The Appellant was charged with one count each of delivery of a controlled substance, possession with in[881]*881tent 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 § 803.9(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 36 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 Williams-port 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 Vasear 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 [882]*882of 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.

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Commonwealth v. Davis
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Bluebook (online)
734 A.2d 879, 1999 Pa. Super. 150, 1999 Pa. Super. LEXIS 1855, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-davis-pasuperct-1999.