Commonwealth v. Drummond

JOHNSON, J.,

concurring:

¶ 11 concur in the result reached by the Majority, affirming the trial court’s imposition of the sentence enhancement under 18 Pa.C.S. § 6317 (Drug-free school zones). Initially, I conclude that the Majority’s interpretation of section 6317 is flawed because it fails to restrict application of the sentencing enhancement for convictions of possession with intent to deliver, 35 P.S. § 780-113(a)(30), to circumstances where the defendant intended delivery within the designated drug-free school zone. See Commonwealth v. Hinds, 2001 PA Super 121, 2001 WL 418933, No. 1518 MDA 1999 (en banc) (Johnson J. dissenting). However, I conclude also that even under the more limited interpretation I have discussed in Hinds, the defendant in this case, David Drummond, is properly subject to application of the enhancement. In contrast to Hinds, the evidence adduced against Drummond demonstrated the defendant’s intent to distribute the controlled substances he possessed within the drug-free school zone.

¶ 2 Initially, a confidential informant told York police that Drummond was making drug sales from his apartment, which was located 587 feet from St. Rose of Lima School. Based on the informant’s tip, police obtained a search warrant for Drum-mond’s apartment. Upon entering, police discovered two small heat-sealed pink Ziploc packets containing small quantities of cocaine, three clear bags containing larger quantities of cocaine, and another bag containing thirty small pink Ziploc bags. Additionally, Police discovered $280 in cash in the immediate vicinity of Drummond’s person. Drummond told the arresting officers that he “was not a big — not a drug pusher ... he was just selling a little to make a little money to buy a plane ticket back to Jamaica.” Police did not recover any personal use paraphernalia from Drummond’s apartment. At trial a police witness assessed the street value of the cocaine at $770, and opined that such a quantity was not likely for personal use. Further, the averments of the search warrant, that a confidential informant had wit*859nessed drug sales from Drummond’s apartment, were introduced at trial without objection from Drummond’s counsel.

¶ 3 I conclude that the evidence of Drummond’s conduct of prior drug sales from his apartment coupled with his close proximity to the school and his possession of a substantial amount of cash is sufficient to sustain a finding that Drummond had recently completed drug sales for cash within the school zone. Further, Drum-mond’s possession of multiple pink bags of the same type used to package small amounts of cocaine, together with his possession of larger amounts of the drug itself, and the absence of any personal use paraphernalia from Drummond’s apartment establishes his intent to engage in further distribution consistent with his pri- or sales.

¶ 4 Accordingly, I concur in the Majority’s determination that Drummond is properly subject to the sentencing enhancement provided by 18 Pa.C.S. § 6317.

¶ 5 McEWEN, President Judge joins this concurring opinion.