This is an interesting, yet scary area of the law for someone who is charged with dealing drugs pursuant to 35 P.S. § 780-113 near a playground pursuant to 18 Pa.C.S. § 6317. This 35 P.S. § 780-113(a)(30) drug statute states,
(a)(30) Except as authorized by this act, the manufacture, delivery, or
possession with intent to manufacture or deliver, a controlled
substance by a person not registered under this act, or a practitioner
not registered or licensed by the appropriate State board, or knowingly
creating, delivering or possessing with intent to deliver, a
counterfeit controlled substance.
18 Pa.C.S. § 6317 is the enhancement statute with respect to selling or distributing near a playground:
(a) General rule. --A
person 18 years of age or older who is convicted in any court of this
Commonwealth of a violation of section 13(a)(14) or (30) of the act of April
14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and
Cosmetic Act, shall, if the delivery or possession with intent to deliver of
the controlled substance occurred within 1,000 feet of the real property on
which is located a public, private or parochial school or a college or
university or within 250 feet of the real property on which is located a
recreation center or playground or on a school bus, be sentenced to a minimum
sentence of at least two years of total confinement, notwithstanding any other
provision of this title, The Controlled Substance, Drug, Device and Cosmetic
Act or other statute to the contrary. The maximum term of imprisonment shall be
four years for any offense:
(1) subject to this
section; and
(2) for which The
Controlled Substance, Drug, Device and Cosmetic Act provides for a maximum term
of imprisonment of less than four years.
If the sentencing court finds that the delivery or
possession with intent to deliver was to an individual under 18 years of age,
then this section shall not be applicable and the offense shall be subject to
section 6314 (relating to sentencing and penalties for trafficking drugs to
minors).
So, what is a "playground"? As defined in
Commonwealth v. Brice, 856 A.2d 107, 112 (Pa. Super. Ct. 2004), The term "playground" is not defined in the
statute. In Commonwealth v. Campbell, 2000 PA Super 251, 758 A.2d 1231 (Pa.
Super. 2000), we considered whether the sentencing enhancement applied to
playgrounds not associated with school property or municipal facilities. In
that case, the play areas at issue were located within a privately owned
HUD
subsidized housing apartment complex, id. at 1233, and included swing sets, a
basketball court, picnic tables, sliding boards, and a metal climbing apparatus.
Id. at 1235.
We found that:[t]he term "playground" has …been defined as "a
piece of land used for and usually equipped with facilities for recreation
especially by children."
Webster's New Collegiate Dictionary 874 (8th ed.
1981). Playground has also been defined as "[a]n outdoor area set aside
for recreation and play; especially, one containing seesaws, swings, and the
like." The American Heritage Dictionary of the English Language 1005 (7th
Ed. 1978). Id.
at 1235. We concluded that the statute was not limited to school or municipal
play areas, but rather, "protects our children in the places where they
routinely play." Id.
at 1237.
Section 6317 itself does not define what constitutes a
"playground," but the term has been discussed in our case law.
Commonwealth v. Brice, 2004 PA Super 293, 856 A.2d 107, 112 (Pa. Super. 2004), appeal
denied, 581 Pa. 696, 864 A.2d 1202 (Pa.
2005). A "playground" has been described as "a piece of land
used for and usually equipped with facilities for recreation especially by
children" and as [**1003] an "outdoor area set aside for
recreation and play"--especially one containing play equipment such as
seesaws and swings. Id.
This Court has concluded that the statute is not limited to school or municipal
play areas, but rather,
"protects
our children in the places where they routinely play." Id. (quoting Commonwealth
v. Campbell,2000 PA Super 251, 758 A.2d 1231,1237 (Pa. Super. 2000)).
Commonwealth
v. Bongiorno, 2006 PA Super 211, P11 (Pa.
Super. Ct.
2006) I think the highlighted portion provides the court with broad latitude and should be scrutinized by your
Lehigh County criminal lawyer for distance and "definition". So, for example, Is an enclosed playground at a fast food restaurant a playground under this definition? Possibly. This may have to be litigated.
Finally, one other point -- even dilapidated playgrounds are included in this definition. For example, a simple, shoddy basketball court where kids congregate is considered a playground.