HOUSE AMENDED
PRIOR PRINTER'S NOS. 132, 347 PRINTER'S NO. 1135
No. 135 Session of 1997
INTRODUCED BY ULIANA, WENGER, BRIGHTBILL, GERLACH, TOMLINSON,
HART, MURPHY, KASUNIC AND SLOCUM, JANUARY 21, 1997
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES,
JUNE 3, 1997
AN ACT
1 Amending Title 18 (Crimes and Offenses) of the Pennsylvania <--
2 Consolidated Statutes, providing a penalty for possession of
3 a controlled substance by an inmate.
4 AMENDING TITLE 18 (CRIMES AND OFFENSES) OF THE PENNSYLVANIA <--
5 CONSOLIDATED STATUTES, FURTHER PROVIDING FOR THE DEFINITION
6 OF "CARETAKER," FOR THEFT OF TRADE SECRETS AND FOR
7 CONTRABAND; AND PROVIDING FOR DRUG-FREE SCHOOL ZONES.
8 The General Assembly of the Commonwealth of Pennsylvania
9 hereby enacts as follows:
10 Section 1. Section 5123(a.2) of Title 18 of the Pennsylvania <--
11 Consolidated Statutes is amended to read:
12 SECTION 1. SECTION 2713(F) OF TITLE 18 OF THE PENNSYLVANIA <--
13 CONSOLIDATED STATUTES IS AMENDED TO READ:
14 § 2713. NEGLECT OF CARE-DEPENDENT PERSON.
15 * * *
16 (F) DEFINITIONS.--AS USED IN THIS SECTION, THE FOLLOWING
17 WORDS AND PHRASES SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS
18 SUBSECTION:
19 "CARE-DEPENDENT PERSON." ANY ADULT WHO, DUE TO PHYSICAL OR
1 COGNITIVE DISABILITY OR IMPAIRMENT, REQUIRES ASSISTANCE TO MEET
2 HIS NEEDS FOR FOOD, SHELTER, CLOTHING, PERSONAL CARE OR HEALTH
3 CARE.
4 "CARETAKER." ANY PERSON WHO:
5 (1) IS AN OWNER, OPERATOR, MANAGER OR EMPLOYEE OF A
6 NURSING HOME, PERSONAL CARE HOME, DOMICILIARY CARE HOME,
7 COMMUNITY RESIDENTIAL FACILITY, INTERMEDIATE CARE FACILITY
8 FOR THE MENTALLY RETARDED, ADULT DAILY LIVING CENTER, HOME
9 HEALTH AGENCY OR HOME HEALTH SERVICE PROVIDER WHETHER
10 LICENSED OR UNLICENSED;
11 (2) PROVIDES CARE TO A CARE-DEPENDENT PERSON IN THE
12 SETTING DESCRIBED IN PARAGRAPH (1); OR
13 (3) HAS AN OBLIGATION TO CARE FOR A CARE-DEPENDENT
14 PERSON FOR MONETARY CONSIDERATION IN THE SETTINGS DESCRIBED
15 IN PARAGRAPH (1) OR IN THE CARE-DEPENDENT PERSON'S HOME.
16 "PERSON." A NATURAL PERSON, CORPORATION, PARTNERSHIP,
17 UNINCORPORATED ASSOCIATION OR OTHER BUSINESS ENTITY.
18 SECTION 2. SECTION 3930(E) OF TITLE 18, AMENDED OCTOBER 16,
19 1996 (P.L.715, NO.128), IS AMENDED TO READ:
20 § 3930. THEFT OF TRADE SECRETS.
21 * * *
22 (E) DEFINITIONS.--AS USED IN THIS SECTION THE FOLLOWING
23 WORDS AND PHRASES SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS
24 SUBSECTION:
25 "ARTICLE." ANY OBJECT, MATERIAL, DEVICE OR SUBSTANCE OR COPY
26 THEREOF, INCLUDING ANY WRITING, RECORD, RECORDING, DRAWING,
27 DESCRIPTION, SAMPLE, SPECIMEN, PROTOTYPE, MODEL, PHOTOGRAPH,
28 MICROORGANISM, BLUEPRINT OR MAP.
29 "COPY." ANY FACSIMILE, REPLICA, PHOTOGRAPH OR REPRODUCTION
30 OF, AN ARTICLE, OR ANY NOTE, DRAWING, SKETCH, OR DESCRIPTION
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1 MADE OF, OR FROM AN ARTICLE.
2 "REPRESENTING." DESCRIBING, DEPICTING, CONTAINING,
3 CONSTITUTING, REFLECTING OR RECORDING.
4 "TRADE SECRET." THE WHOLE OR ANY PORTION OR PHASE OF ANY
5 SCIENTIFIC OR TECHNICAL INFORMATION, DESIGN, PROCESS, PROCEDURE,
6 FORMULA OR IMPROVEMENT [OR CUSTOMER OR SALES INFORMATION OR ANY
7 OTHER PRIVILEGED OR CONFIDENTIAL INFORMATION] WHICH IS OF VALUE
8 AND HAS BEEN SPECIFICALLY IDENTIFIED BY THE OWNER AS OF A
9 CONFIDENTIAL CHARACTER, AND WHICH HAS NOT BEEN PUBLISHED OR
10 OTHERWISE BECOME A MATTER OF GENERAL PUBLIC KNOWLEDGE. THERE
11 SHALL BE A REBUTTABLE PRESUMPTION THAT SCIENTIFIC OR TECHNICAL
12 INFORMATION [OR CUSTOMER OR SALES INFORMATION OR ANY OTHER
13 PRIVILEGED OR CONFIDENTIAL INFORMATION] HAS NOT BEEN PUBLISHED
14 OR OTHERWISE BECOME A MATTER OF GENERAL PUBLIC KNOWLEDGE WHEN
15 THE OWNER THEREOF TAKES MEASURES TO PREVENT IT FROM BECOMING
16 AVAILABLE TO PERSONS OTHER THAN THOSE SELECTED BY HIM TO HAVE
17 ACCESS THERETO FOR LIMITED PURPOSES.
18 SECTION 3. SECTION 5123(A.2) OF TITLE 18 IS AMENDED TO READ:
19 § 5123. Contraband.
20 * * *
21 (a.2) Possession of controlled substance contraband by
22 inmate prohibited.--A prisoner or inmate commits a [misdemeanor
23 of the first degree] felony of the second degree if he
24 unlawfully has in his possession or under his control any
25 controlled substance in violation of section 13(a)(16) of The
26 Controlled Substance, Drug, Device and Cosmetic Act. For
27 purposes of this subsection, no amount shall be deemed de
28 minimis.
29 * * *
30 SECTION 4. TITLE 18 IS AMENDED BY ADDING A SECTION TO READ: <--
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1 § 6317. DRUG-FREE SCHOOL ZONES.
2 (A) GENERAL RULE.--A PERSON 18 YEARS OF AGE OR OLDER WHO IS
3 CONVICTED IN ANY COURT OF THIS COMMONWEALTH OF A VIOLATION OF
4 SECTION 13(A)(14) OR (30) OF THE ACT OF APRIL 14, 1972 (P.L.233,
5 NO.64), KNOWN AS THE CONTROLLED SUBSTANCE, DRUG, DEVICE AND
6 COSMETIC ACT, SHALL, IF THE DELIVERY OR POSSESSION WITH INTENT
7 TO DELIVER OF THE CONTROLLED SUBSTANCE OCCURRED WITHIN 1,000
8 FEET OF THE REAL PROPERTY ON WHICH IS LOCATED A PUBLIC, PRIVATE
9 OR PAROCHIAL SCHOOL OR A COLLEGE OR UNIVERSITY OR WITHIN 250
10 FEET OF THE REAL PROPERTY ON WHICH IS LOCATED A RECREATION
11 CENTER OR PLAYGROUND OR ON A SCHOOL BUS, BE SENTENCED TO A
12 MINIMUM SENTENCE OF AT LEAST TWO YEARS OF TOTAL CONFINEMENT,
13 NOTWITHSTANDING ANY OTHER PROVISION OF THIS TITLE, THE
14 CONTROLLED SUBSTANCE, DRUG, DEVICE AND COSMETIC ACT OR OTHER
15 STATUTE TO THE CONTRARY. THE MAXIMUM TERM OF IMPRISONMENT SHALL
16 BE FOUR YEARS FOR ANY OFFENSE:
17 (1) SUBJECT TO THIS SECTION; AND
18 (2) FOR WHICH THE CONTROLLED SUBSTANCE, DRUG, DEVICE AND
19 COSMETIC ACT PROVIDES FOR A MAXIMUM TERM OF IMPRISONMENT OF
20 LESS THAN FOUR YEARS.
21 IF THE SENTENCING COURT FINDS THAT THE DELIVERY OR POSSESSION
22 WITH INTENT TO DELIVER WAS TO AN INDIVIDUAL UNDER 18 YEARS OF
23 AGE, THEN THIS SECTION SHALL NOT BE APPLICABLE, AND THE OFFENSE
24 SHALL BE SUBJECT TO SECTION 6314 (RELATING TO SENTENCING AND
25 PENALTIES FOR TRAFFICKING DRUGS TO MINORS).
26 (B) PROOF AT SENTENCING.--THE PROVISIONS OF THIS SECTION
27 SHALL NOT BE AN ELEMENT OF THE CRIME. NOTICE OF THE
28 APPLICABILITY OF THIS SECTION TO THE DEFENDANT SHALL NOT BE
29 REQUIRED PRIOR TO CONVICTION, BUT REASONABLE NOTICE OF THE
30 COMMONWEALTH'S INTENTION TO PROCEED UNDER THIS SECTION SHALL BE
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1 PROVIDED AFTER CONVICTION AND BEFORE SENTENCING. THE
2 APPLICABILITY OF THIS SECTION SHALL BE DETERMINED AT SENTENCING.
3 THE COURT SHALL CONSIDER EVIDENCE PRESENTED AT TRIAL, SHALL
4 AFFORD THE COMMONWEALTH AND THE DEFENDANT AN OPPORTUNITY TO
5 PRESENT NECESSARY ADDITIONAL EVIDENCE AND SHALL DETERMINE BY A
6 PREPONDERANCE OF THE EVIDENCE IF THIS SECTION IS APPLICABLE.
7 (C) AUTHORITY OF COURT IN SENTENCING.--THERE SHALL BE NO
8 AUTHORITY FOR A COURT TO IMPOSE ON A DEFENDANT TO WHICH THIS
9 SECTION IS APPLICABLE A LESSER SENTENCE THAN PROVIDED FOR IN
10 SUBSECTION (A), TO PLACE THE DEFENDANT ON PROBATION OR TO
11 SUSPEND SENTENCE. NOTHING IN THIS SECTION SHALL PREVENT THE
12 SENTENCING COURT FROM IMPOSING A SENTENCE GREATER THAN THAT
13 PROVIDED IN THIS SECTION. SENTENCING GUIDELINES PROMULGATED BY
14 THE PENNSYLVANIA COMMISSION ON SENTENCING SHALL NOT SUPERSEDE
15 THE MANDATORY SENTENCES PROVIDED IN THIS SECTION. DISPOSITION
16 UNDER SECTION 17 OR 18 OF THE CONTROLLED SUBSTANCE, DRUG, DEVICE
17 AND COSMETIC ACT SHALL NOT BE AVAILABLE TO A DEFENDANT TO WHICH
18 THIS SECTION APPLIES.
19 (D) APPEAL BY COMMONWEALTH.--IF A SENTENCING COURT REFUSES
20 TO APPLY THIS SECTION WHERE APPLICABLE, THE COMMONWEALTH SHALL
21 HAVE THE RIGHT TO APPELLATE REVIEW OF THE ACTION OF THE
22 SENTENCING COURT. THE APPELLATE COURT SHALL VACATE THE SENTENCE
23 AND REMAND THE CASE TO THE SENTENCING COURT FOR IMPOSITION OF A
24 SENTENCE IN ACCORDANCE WITH THIS SECTION IF IT FINDS THAT THE
25 SENTENCE WAS IMPOSED IN VIOLATION OF THIS SECTION.
26 SECTION 5. THE ADDITION OF 18 PA.C.S. § 6317 SHALL APPLY TO
27 ALL OFFENSES OCCURRING ON OR AFTER THE EFFECTIVE DATE OF THIS
28 ACT.
29 Section 2 6. This act shall take effect in 60 days. <--
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