J-S60035-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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.

MEMORANDUM BY OTT, J.:                                      FILED OCTOBER 23, 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.

____________________________________________


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: 10/23/2015




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