Commonwealth v. Reefer

*1146BENDER, J.,

Concurring and Dissenting.

¶ 1 I agree with the majority that the May 2, 2001 order granting relief under 61 P.S. § 81 must be reversed. However, I write separately because, in my view, (1) the meaning of section 81 is clear, so we do not have to examine its legislative history; and (2) we do not have to remand for a hearing because the record contains no evidence that SCI Cresson lacks the resources to provide for Appellant’s medical treatments and needs.

¶ 2 First, in order to interpret the phrase “modify the sentence” as used in 61 P.S. § 81, the majority examines the legislative history of that particular statute and “former statutes involving sentencing that were in existence when Section 81 was enacted[.]” I conclude that a reading of the plain language of section 81 as a whole reveals that the legislature intended to provide courts with discretion to modify only the place of confinement, not the length of confinement. See, e.g., Commonwealth v. Lisboy, 392 Pa.Super. 411, 573 A.2d 222, 223 (1990) (stating we are not to resort to examination of legislative history when meaning of statute is plain).

¶ 3 The following emphasized language in the statute militates in favor of this conclusion:

§ 81. Illness of prisoner; removal for treatment
Whenever any convict or person is confined in any jail, workhouse, reformatory, or reform or industrial school, penitentiary, prison, house of correction or any other penal institution, under conviction or sentence of a court, or is so confined while awaiting trial or confined for any other reason or purpose and it is shown to a court of record by due proof that such convict or person is seriously ill, and that it is necessary that he or she be removed from such penal institution, the court shall have power to modify its sentence, impose a suitable sentence, or modify the order of confinement for trial, as the case may be, and provide for the confinement or care of such convict or person in some other suitable institution where proper treatment may be administered. Upon the recovery of such person, the court shall recommit him or her to the institution from which he or she was removed.

61 P.S. § 81. As the majority notes, we turn to our rules of statutory interpretation to ascertain the meaning of a statute. Our obligation is to determine the legislature’s intent and to effectuate that intent. Commonwealth v. Berryman, 437 Pa.Super. 258, 649 A.2d 961, 965 (1994). In doing so, “[w]e are to give the words of a statute their plain and ordinary meaning.” Id. Also, “[t]he words are to be considered in their grammatical context.” Id.

[Sjections of statutes are not to be isolated from the context in which they arise such that an individual interpretation is accorded one section which does not take into account the related sections of the same statute. Statutes do not exist sentence by sentence. Their sections and sentences comprise a composite of their stated purpose.

Id. (quoting Commonwealth v. Lurie, 524 Pa. 56, 569 A.2d 329, 331 (1990)). “Further, a statute should be interpreted as a whole, ... giving effect to all of its provisions if possible. Every word, sentence or provision of a statute is intended for some purpose and accordingly must be given effect.” Berryman, 649 A.2d at 966 (citations omitted). “[L]anguage which is capable of more than one meaning can be clear and unmistakable in the context of its usage by the selection of the meaning which is neither forced nor strained.” Id. In all, we are to give a statute the “most sensible construction possible.” Id. Penal *1147statutes, in particular, are to be construed strictly. Id.

¶ 4 In my opinion, there is only one reasonable interpretation of section 81. When the plain language of section 81 is read as a whole, giving effect to each word, yet interpreting each word in the context of the entire section, the only reasonable conclusion is that the court is permitted only to alter the place of confinement of a seriously ill prisoner. Phrases in section 81 such as “recommit him or her to the institution from which he or she was removed,” and “provide for care in some other suitable institution,” instruct the court on how it is permitted to effectuate the purpose of section 81. This language reveals that the legislature intended only to allow courts to modify the place of confinement and only for so long as required to provide the necessary treatment to the prisoner that the original institution was unable to provide.

¶ 5 This conclusion is bolstered by the placement’ of section 81 in the scheme of our consolidated statutes. Title 61 is entitled, “Penal and Correctional Institutions,” and Chapter 1 of Title 61 is entitled, “Reception and Care of Inmates Generally.” Chapter 1 is divided into several sections, and section 81, in particular, falls under the general heading of “Transfer and Re-transfer of Inmates.” Sections included under this general heading are section 72 (“Transfer between institutions; petition and order; consent of common pleas; re-transfer”); section 82 (“Escape of prisoner removed for treatment”); and, of course, section 81 (“Illness of prisoner; removal for treatment”). The headings under which section 81 are included refer only to the transfer of inmates from place to place, and make no reference to shortening of sentences for any reason.

¶ 6 Even if it were necessary to examine the legislative history of this particular statute, I do not believe that we should look at other sentencing statutes as they existed in 1919, which was the year section 81 was enacted. For example, the majority cites to the Act of February 28, 1905, P.L. 25, § 1, and explains that this statute (which was enacted in 1905 and in existence at the time section 81 was enacted), directed courts to sentence persons who were to be imprisoned for one or more years to the state penitentiary. I understand that statutes existed mandating the place of confinement for certain lengths of sentences and, as the majority notes, similar statutes exist today, see 42 Pa.C.S. § 9762; however, I do not agree that these other sentencing statutes have any bearing on our interpretation of section 81.

¶ 7 Finally, case law supports the conclusion that a court may only modify the place of confinement pursuant to section 81. In Commonwealth v. Dunlavey, 805 A.2d 562 (Pa.Super.2002), the appellant (Dunlavey) filed a petition under section 81 and the trial court granted the petition and modified Dunlavey’s original sentence of seven to twenty years’ imprisonment to fifteen years’ probation. Id. at 563. In reversing the trial court’s order, we stated:

[ajppellate courts have found that [section 81] applies only to those prisoners who become seriously ill while in prison and, for the benefit of the ill prisoner as well as the rest of the prison population, should be transferred temporarily to a more suitable institution where medical care can be administered properly. Further, the prisoners must allege that it is necessary for them to leave prison because the prison is unable to provide adequate medical care, and the prisoners must return when their medical treatment is complete.

Id. at 564. As we stated in Dunlavey, section 81 allows only for a transfer of a prisoner to a more suitable institution where his or her medical needs can be *1148met. Section 81 does not provide for the permanent release of a prisoner. Id. at 565 n. 6. Similarly, in Commonwealth v. Tuddles, 782 A.2d 560, 563 (Pa.Super.2001), we concluded that a petitioner, who sought release on house arrest or permission to leave the jail unattended for medical appointments, was not eligible for relief under section 81 because section 81 only provides a court with authority to transfer an inmate to “ ‘some other suitable institution where proper care may be administered.’ ” Id. at 563 (quoting 61 P.S. § 81) (emphasis in original). Clearly, a plain reading of section 81 and reference to relevant case law reveals that courts do not have the discretion to shorten a judgment of sentence under section 81. For these reasons, it is not necessary to delve into the legislative history of section 81 to ascertain the meaning of this statute.

¶ 8 Secondly, in my view, there is no need to remand this case for an additional hearing. The trial court established a complete record by taking testimony and holding hearings, yet there is no evidence to support the trial court’s grant of relief under section 81.

¶ 9 Section 81 requires a petitioner to show by “due proof’ that he or she is “seriously ill” and “that it is necessary that he or she be removed from such penal institution,” 61 P.S. § 81, “either because the inmate’s disease can not be treated in prison or as a means of quarantine. The correct standard to have been applied is whether an inmate who has become seriously ill while in prison should be temporarily released to receive the necessary medical treatment.” Dunlavey, 805 A.2d at 564 (emphasis added). Cf. Commonwealth v. Lightcap, 806 A.2d 449, 453 n. 2 (Pa.Super.2002) (“[Section] 81 does not require that the illness be ‘new,’ but only requires that it be serious.... ”). In order to be eligible for relief, it is essential that a petitioner demonstrate that the prison medical system “is unable to provide him with adequate medical caret,]” or, in other words, that the prison medical system lacks the resources to provide the necessary treatment. Id. See also Lightcap, 806 A.2d at 451-52 (“In order to obtain relief under 61 P.S. § 81, a petitioner must make a prima facie claim for modification of sentence or transfer. To make a prima facie claim, a petition must allege that his current facility lacks the resources to treat him or that his illness compromises the collective health of the institution holding him.”).

¶ 10 Complaints about inadequate medical care or about the quality of care received in the current facility do not establish a prima facie case for relief under section 81. Lightcap, 806 A.2d at 452-53; Commonwealth v. Deaner, 779 A.2d 578, 582 (Pa.Super.2001). In Lightcap, the appellant (Lightcap) petitioned for relief under section 81, alleging that his liver disease had progressed to the point where he was in need of a liver transplant and that the state correctional facility where he was incarcerated was unable to provide this treatment. We concluded that Lightcap’s petition established a prima facie case for relief under section 81 and, since the trial court dismissed his petition without a hearing, we remanded for a hearing on the issue of what Lightcap’s medical needs were and whether the state correctional institution where he was incarcerated was capable of meeting those needs. Light-cap, 806 A.2d at 453. Conversely, the petitioner in Deaner, who suffered from serious complications related to diabetes, failed to establish a prima facie case for relief under section 81 because he merely raised numerous allegations of inadequate care, rather than asserting that the prison lacked the resources to treat him or that his illness compromised the collective health of the prison population. Deaner, 779 A.2d at 582 (Pa.Super.2001). See also Tuddles, 782 A.2d at 563 (concluding peti*1149tioner not eligible for relief under section 81 where “sole complaint [was] neglect in treatment and medication, which [was] capable of being remedied without transfer”).

¶ 11 In the instant case, the trial court concluded that Appellant’s precarious medical condition requires attention and monitoring only available outside the prison setting, see T.C.O., 5/1/01, at 4, but the record lacks evidence that SCI Cresson was unable to, or lacked the resources, to provide the care required by Appellant.12 The focus of the trial court, as evidenced in its opinion and supplemental opinion, was on the gravity of Appellant’s medical condition. The Commonwealth stipulated that Appellant’s condition was chronic and serious. Accordingly, the remaining issue was whether SCI Cresson has the resources to treat Appellant.

¶ 12 Appellant presented the expert opinion and testimony of Carla G. Fox, M.D. Dr. Fox, an internal medicine practitioner in California, submitted a written medical opinion based on her review of Appellant’s medical records. In her opinion, Dr. Fox expressed concerns about the quality of Appellant’s treatment. See Letter from Dr. Fox to the Honorable Judith Freidman (Dr. Fox Letter), 12/4/00. She opined that Appellant should be under the care of a cardiologist and expressed concern about the doses and types of medications ordered for Appellant, Id. She admitted that she was unfamiliar with the formulary of medications available to prisoners at SCI Cresson, yet she concluded that Appellant was not receiving “first-line cardiac medications.” Id. at 2. In Dr. Fox’s deposition however, she admitted that Appellant’s current medications were appropriate for his condition. N.T. Deposition of Dr. Fox, 7/25/00, at 7. After explaining the various diseases from which Appellant suffers, including, inter alia, arteriosclerosis, peripheral vascular disease, chronic obstructive pulmonary disease, arthritis, carpel tunnel syndrome, back pain, esophageal reflux, colon polyps, and kidney problems, Dr. Fox indicated that the treatment Appellant was receiving in prison was “good” and that the treating physicians were “diligent and caring.” Id. at 20. Notably, she concluded that “[n]ot everything is available, and they [the prison medical staff] have to work within a framework of a bureaucracy which I’m sure isn’t easy. I have no real knowledge of what care delivery requires in that setting.” Id. However, Dr. Fox failed to indicate specifically what treatments Appellant required that were “not available” to him in prison. Id.

¶ 13 Moreover, Dr. Fox was admittedly unfamiliar with the medical resources available at the prison. Id. at 20, 36. For example, Dr, Fox was unable to comment on the availability of Cardizem, a cardiac medication that Appellant’s treating physician discontinued for medical reasons. Id. at 22. She merely speculated that Appellant may benefit from the Cardizem, but admitted that Appellant had problems with headaches and low blood pressure while he was on it. Id. The key question on that particular issue was whether Cardizem is necessary for Appellant and available at SCI Cresson, and there was simply no evidence presented by Appellant to resolve either question other than Dr. Fox’s speculation on the issue. In fact, information in the record implies that Cardizem is an available medication in the prison formu-*1150lary. Id. at 34. Overall, Dr. Fox agreed that Appellant’s heart condition was inoperable and his other conditions would not change in a setting outside of prison, other than maybe his depression. Id. at 33. Dr. Fox further admitted that Appellant’s heart condition dates back to at least 1985, and that he has been receiving appropriate treatment during the time he has been incarcerated. Id. at 35. Finally, Dr. Fox admitted that Appellant was getting the same treatment inside prison as he would get from some physicians outside of prison. Id. at 38.

¶ 14 Dr. Fox also indicated that Appellant’s anger and frustration about being imprisoned would likely “precipitate episodes of angina and ischemia....” Dr. Fox Letter at 3.13 Dr. Fox concluded that “despite the sincerity and diligence of [Appellant’s] caregivers, [she believes] to a reasonable degree of medical certainty that [Appellant’s] situation does not allow for adequate medical management or adequate control of environmental factors to manage his severe cardiovascular disease.” Id.

¶ 15 Anton 0. Skerl, M.D., Appellant’s treating prison physician, submitted a letter in response to Dr. Fox’s opinion. Letter from Dr. Skerl to Rebecca D. Spangler, A.D.A., 1/3/01. Dr. Skerl explained that the adjustments in Appellant’s medications were based on medical reasons. Id. For example, Dr. Skerl decreased Appellant’s Lopressor dose due to his low blood pressure. Id. Dr. Skerl also stated that Appellant was having “infrequent chest pain requiring only about one nitroglycerin pill a week,” and concluded that Appellant is “getting more than adequate care.” Id. On June 27, 2001, Dr. Fox submitted another letter indicating that Appellant’s “inoperable coronary disease characterized by persistence of chest pain due to incomplete control of ischemia” at rest could lead to coronary spasm, further ischemia, and lethal cardiac arrhythmias. Letter from Dr. Fox, 6/27/01. She concluded that this condition is aggravated by stress and that Appellant requires a restful, non-stressful environment. Id. She further concluded that “[a]though [Appellant] has survived to the present time in his present environment, he is substantially more likely to die suddenly while in prison than in the less stressful nursing home environment.” Id.

¶ 16 Overall, the record reveals three areas of concern pertaining to Appellant’s health: (1) medication management and monitoring of Appellant’s condition; (2) availability of specialists, such as a cardiologist; and (3) effects of the stress of incarceration on Appellant’s health. However, the record does not answer the essential issue in this case, ie., whether SCI Cres-son has the available resources to address these areas of concern. In other words, can SCI Cresson provide, for example, the following: (1) necessary medications; (2) appropriate level of monitoring such as the taking of Appellant’s vital signs as often as medically necessary; and (3) consultation and regular follow-up with a cardiologist, if necessary? Are there ways to decrease the stress of incarceration that are suitable for Appellant’s condition, such as separating him from the general population or providing him with his own cell? What kind of care is being provided in a skilled nursing facility that is necessary for Appellant and can not be provided at SCI Cresson? These kinds of questions go directly to an essential inquiry under section 81, ie., whether SCI Cresson has the available resources to provide for Appellant’s medical needs. The record is simply devoid of any evidence that SCI Cresson lacks the resources to provide the neees-*1151sary medical care for Appellant. Instead, the focus of the expert opinions, testimony, and hearings was on the gravity of Appellant’s condition and complaints about the quality of care received at SCI Cres-son. Even if SCI Cresson is providing inadequate care, yet has the resources to provide the necessary care, relief is not available under section 81. In my view, Appellant failed to establish that his “disease can not be treated in prison.” See Dunlavey, 805 A.2d at 564. Accordingly, I would reverse the trial court’s order granting relief under section 81.

. Similarly, in its supplemental opinion, the trial court concluded that Appellant’s condition has worsened since he has been imprisoned and ”[t]he monitoring and balancing required to keep him alive will be more difficult with each passing day. The prison system does not have the resources to provide the skilled nursing [Appellant] now requires.” T.C.O. Supplemental, 8/27/01, at 3.

. Appellant’s counsel argued that Appellant “suffers from a situation where the very fact of his incarceration is a serious threat to his health.” N.T. Petition Hearing, 2/2/01, at 36.