Com. v. Pelier, J.

J-S64019-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JARAY PELIER,

Appellant No. 284 MDA 2017

Appeal from the Judgment of Sentence December 19, 2016
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0002461-2015

BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 08, 2017

Appellant, Jaray Pelier, appeals from the judgment of sentence entered

on December 19, 2016, in the Lackawanna County Court of Common Pleas.

We affirm.

The relevant facts of this matter were set forth by the trial court as

follows:

On November 5, 2015, Officers William Golden and James
Sheerin of the Scranton Police Department were on patrol in
North Scranton. (N.T.5/16/16 at pg. 37). The officers are part of
the street crime unit, patrolling in an unmarked car and in plain
clothing. Id[.] at 39. At approximately 2:00 p.m. they observed
[Appellant] standing outside of a red Mercedes which was parked
in the Sunoco parking lot in the 1700 block of North Main
Avenue. Id[.] at 38. He was speaking to two males.1 Id[.] Officer
Golden observed the red Mercedes drive away and [Appellant]
____________________________________________

* Former Justice specially assigned to the Superior Court.
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walk back to his vehicle and get into the driver’s seat. Id[.] at
40. The officers approached and parked their vehicle with Officer
Golden exiting wearing a visible police vest. Id[.] at 41. He
observed [Appellant] operating a Global Positioning System
(GPS). Id. [Appellant] said “What’s up?” Id. at 42. The Officer
responded by asking if [Appellant] needed help. Id. [Appellant]
said he did not need help, [and] he was heading back to
Allentown where he lived. Id. The Officer asked [Appellant] if he
lived in Allentown. Id. [Appellant] then said no, he lived in
Scranton. Id[.] at 43. The Officer asked for identification. Id[.]
[Appellant] asked if he could step out of his car. Id. The Officer
agreed and [Appellant] exited his car with the Officer noticing
[Appellant] beginning to act increasingly nervous. Id[.] at 44.

1 Notably, this neighborhood has been designated a
high crime area by the Office of Economic
Community Development (“OECD”). (N.T. 3/31/16 at
pg. 6). This designation awards a grant to the City of
Scranton to fund additional officers on patrol in this
neighborhood. In addition, Officer Golden testified
several other factors including [the] high number of
drug related arrest[s], and the presence of Castle
Night Club support his opinion that it is a high crime
neighborhood. Id. at 6-9.

At this point, Officer Golden asked [Appellant] if he would
consent to a search of his person for officer safety. Id[.] at 44.
[Appellant] agreed. Id. While the Officer was patting [Appellant]
down, he detected an odor of marijuana coming from
[Appellant’s] mid-section. Id.

Officer Golden asked [Appellant] if he could search his car.
Id[.] at p. 45. [Appellant] declined stating it was not his car.[1]
Id. The Officer observed that [Appellant] was operating the car
with a single key. Id. Officer Golden testified that based on his
training and experience, the fact that [Appellant] was operating

____________________________________________

1 The vehicle Appellant occupied was owned by Melinda Palermo-Albrittno.
N.T., 3/31/16, at 20. Officer Golden testified that Ms. Palermo-Albrittno
arrived at the scene and informed him that she had allowed Appellant to use
the car and that she had not used the car in three months. Id. at 21.

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a third party vehicle with a single ignition key heightened his
suspicion that criminal activity was afoot. Id.

At around this time, Scranton Police Department K-9
officer Kyle Kemp responded to the scene. Id. at 44. His canine
partner conducted an exterior canine sniff of the car and alerted
for the presence of a controlled substance. Id. at 52. Officer
Kemp then placed his canine partner in the interior of the vehicle
[Appellant] had been driving, which also resulted in a positive
alert. Id. After the canine sniff was positive, Officer Golden
conducted an interior search of the vehicle. Id[.] at 53. He
observed a jar of peanut butter on the back seat. Id. Next to it
was a box of rubber gloves. Id. Officer Golden opened the lid of
the jar of peanut butter and observed the contents of the jar had
been manipulated. Id[.] at 54. The Officer proceeded to reach
into the jar and retrieve packets of heroin. Id[.] at 24. The hatch
of the car was searched next, resulting in the discovery of four
(4) glassine baggies within a box of diapers. Id. Officer Golden
then moved on to search the front console of the vehicle, which
resulted in the discovery of one (1) bag of heroin packaged and
ready for sale. Id[.] at 55. All recovered suspected heroin was
field tested with positive results.[2] Id.

[Appellant] was then arrested and placed in the backseat
of a patrol car. Id[.] at 56. [Appellant] was then advised of his
Miranda Rights.[3] Id. Officer Golden testified that [Appellant]
was also then advised that he was going to a secure facility, that
the Officer had smelled marijuana during the consent search,
and that [Appellant] would be charged with additional crimes if
he brought contraband into the facility. Id. [Appellant] replied
“Fuck you, I got nothing.” Id. [Appellant] was then transported
to Scranton Police Headquarters. Id[.] at 57.

Once at Scranton Police Headquarters, a strip search was
attempted by Officer Golden but due to the uncooperative nature
of [Appellant], more officers had to be called in. Id[.] at 57.
Once officer’s remove[d] [Appellant’s] clothes, [Appellant] was
____________________________________________

2 The record reveals that in total, 151 baggies of heroin were recovered from
the vehicle. Affidavit of Probable Cause, 11/6/15, at 2.

3 See Miranda v. Arizona, 384 U.S. 436 (1966).

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instructed to turn and bend at the waist. Id[.] at 58. Officer
Golden testified [Appellant] responded “Fuck you, suck my dick,
you know you like it.” Id. Once [Appellant] complie[d], it …
revealed a quantity of marijuana concealed under his scrotum.
Id. Officers ask[ed] [Appellant] to remove the bag of marijuana,
to which [Appellant] responded with another slew of sexual and
graphic statements to the officers. Id. Once Officer Golden
remove[d] the bag, it [was] field tested and test[ed] positive for
THC. Id.

Pa.R.A.P. 1925(a) Opinion, 4/20/17, at 2-5.

Appellant was charged with multiple crimes in connection with the

heroin discovered in the vehicle and the marijuana discovered on his person.

On May 16, 2016, following a jury trial, Appellant was convicted of one count

of possession of a controlled substance with intent to deliver (“PWID”), one

count of contraband, one count of possession of a controlled substance, two

counts of possession of drug paraphernalia, and one count of possession of

marijuana.4 On December 19, 2016, the trial court sentenced Appellant to

an aggregate term of five to ten years of incarceration plus a sentence of

two years and fifteen days of special probation to be served concurrently

with the sentence of total confinement.

Appellant filed a timely post-sentence motion, and on January 10,

2017, the trial court denied Appellant’s motion. Appellant filed a timely

____________________________________________

4 35 P.S. § 780-113(a)(30); 18 Pa.C.S. § 5123(a); 35 P.S. § 780-
113(a)(16); 35 P.S. § 780-113(a)(32); 35 P.S. § 780-113(a)(16); and 35
P.S. § 780-113(a)(31), respectively.

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notice of appeal; both Appellant and trial court have complied with Pa.R.A.P.

1925.

In this appeal, Appellant presents the following issues for this Court’s

consideration:

1. Whether the verdicts and judgements of sentence at counts 1,
(35 [P.S.] § 780-113(a)(30), possession with intent to deliver -
heroin) and 3 (simple possession - 35 [P.S.] § 780-113(a)(16)),
should be vacated because the evidence was insufficient to
convict in that the narcotics were not found on [Appellant’s]
person and the Commonwealth failed to show sufficient evidence
that [Appellant] constructively possessed the narcotics?

2. Whether the verdict and judgment of sentence at count two of
the criminal information, 18 Pa.C.S.A. § 5123(a), should be
vacated because the evidence was insufficient to establish that
[Appellant] had the requisite mens rea to violate the statute in
that he did not volitionally enter the police station in which
marijuana was recovered from his person?

3. Whether the lower court erred in denying [Appellant’s] motion
to suppress physical evidence seized from his person and the
vehicle he drove because, prior to the searches, he was detained
in violation of his rights as embodied in Article 1 § 8 of the
Pennsylvania Constitution and the Fourth Amendment of the
United States Constitution in that his detention was premised
upon a suspicion that he was violating travel restrictions
imposed as a condition of probation or parole rather than upon a
reasonable suspicion that he was engaged in criminal activity?

4. Whether the trial court erred in interpreting the term “prison”
as used in 18 Pa.C.S.A. § 5123(a) in that the interpretation was
not in the light most favorable to [Appellant] as mandated by 1
Pa.C.S.A § 1928(b)(1), and whether the trial court’s
interpretation of “prison”, embodied in its jury instruction
defining a “prison” as a “building where people are kept as
punishment for a crime or while they are waiting to go to court
or a state or place of confinement”, constitutes reversible error
because the instruction failed to clearly, adequately, and
accurately reflect the law and the error was not harmless?

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Appellant’s Brief at 5-6 (full capitalization omitted).5

In Appellant’s first issue, he argues that the evidence was insufficient

to convict him of PWID and simple possession of heroin because the

narcotics were not found on his person, and the Commonwealth failed to

prove constructive possession. We conclude that no relief is due.

We analyze challenges to the sufficiency of the evidence under the

following standard:

Our standard when reviewing the sufficiency of the
evidence is whether the evidence at trial, and all reasonable
inferences derived therefrom, when viewed in the light most
favorable to the Commonwealth as verdict-winner, are sufficient
to establish all elements of the offense beyond a reasonable
doubt. We may not weigh the evidence or substitute our
judgment for that of the fact-finder. Additionally, the evidence
at trial need not preclude every possibility of innocence, and the
fact-finder is free to resolve any doubts regarding a defendant’s
guilt unless the evidence is so weak and inconclusive that as a
matter of law no probability of fact may be drawn from the
combined circumstances. When evaluating the credibility and
weight of the evidence, the fact-finder is free to believe all, part
or none of the evidence. For purposes of our review under these
principles, we must review the entire record and consider all of
the evidence introduced.

____________________________________________

5 We have renumbered Appellant’s issues for purposes of our discussion.
Because Appellant raises challenges to both the sufficiency of the evidence
and to the ruling of the suppression court, we must address the sufficiency
of the evidence first. See Commonwealth v. Coleman, 130 A.3d 38, 41
(Pa. Super. 2015) (stating that because a successful challenge to the
sufficiency of the evidence warrants automatic discharge rather than retrial,
we address that issue first).

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Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)

(citation omitted).

The relevant elements of simple possession and PWID are as follows:

(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited:

***

(16) Knowingly or intentionally possessing a
controlled or counterfeit substance by a person not
registered under this act, or a practitioner not
registered or licensed by the appropriate State
board, unless the substance was obtained directly
from, or pursuant to, a valid prescription order or
order of a practitioner, or except as otherwise
authorized by this act.

***

(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.

35 P.S. § 780–113(a)(16), (30).

PWID can be inferred from the quantity of the drugs possessed and

other surrounding circumstances, such as lack of drug paraphernalia.

Commonwealth v. Bess, 789 A.2d 757, 762 (Pa. Super. 2002) (citation

omitted). Factors that may be relevant to establishing that drugs were

possessed with the intent to deliver include the particular method of

packaging, the form of the drug, and the behavior of the defendant.

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Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000) (en

banc). Moreover, we have held that circumstantial evidence is reviewed by

the same standard as direct evidence and that a decision by the trial court

will be affirmed “so long as the combination of the evidence links the

accused to the crime beyond a reasonable doubt.” Commonwealth v.

Johnson, 818 A.2d 514, 516 (Pa. Super. 2003) (citations omitted).

As discussed above, the heroin seized in this matter was not recovered

from Appellant’s person; it was discovered in the car that Appellant was

driving. However, it is well settled that when the illegal item a person is

charged with possessing is not found on his person, the Commonwealth may

establish the elements of the possessory offense through “constructive

possession.” Commonwealth v. Smith, 146 A.3d 257, 263 (Pa. Super.

2016).

Constructive possession is a legal fiction, a pragmatic construct
to deal with the realities of criminal law enforcement.
Constructive possession is an inference arising from a set of
facts that possession of the contraband was more likely than not.
We have defined constructive possession as conscious dominion.
We subsequently defined conscious dominion as the power to
control the contraband and the intent to exercise that control.
To aid application, we have held that constructive possession
may be established by the totality of the circumstances.

Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004) (internal

citations and quotation marks omitted).

The evidence presented at trial established that Appellant was the sole

occupant of the vehicle, Appellant was in the driver’s seat and in control of

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the vehicle, there was no drug-use paraphernalia, and 151 baggies of heroin

were found in the car. N.T., 5/16/16, at 41-43, 55, 68-70. Moreover, it was

likely that Appellant knew about the heroin in the car because his demeanor

changed and he became agitated when Officer Golden began investigating

Appellant’s version of events. Id. at 43.6 Appellant also attempted to

distance himself from the vehicle when police approached, and he had

conflicting versions of the reason he was in Scranton. Id. at 42. Detective

Harold Zech testified as an expert that people who transport illegal drugs

often do so in a third party’s car in an effort to avoid any type of ownership

should the drugs be discovered. Id. at 115. Additionally, Detective Zech

testified as an expert that the quantity and packaging of the heroin was

consistent with PWID. Id. at 116. When this evidence and the attendant

circumstances are viewed in the light most favorable to the Commonwealth

as the verdict winner, we conclude that the evidence was sufficient to prove

that Appellant constructively possessed heroin and did so with the intent to

deliver it. Accordingly, no relief is due.

____________________________________________

6 See Commonwealth v. Hughes, 865 A.2d 761, 792 (Pa. 2004) (“The
conduct of an accused following a crime, including ‘manifestations of mental
distress,’ is admissible as tending to show guilt.”).

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In his second issue on appeal, Appellant argues that the evidence was

insufficient to establish the crime of contraband. Appellant avers that he did

not volitionally enter the police station and, therefore, the Commonwealth

did not prove the requisite mens rea.

We reiterate that when reviewing the sufficiency of the evidence, we

must determine whether the evidence at trial, and all reasonable inferences

derived therefrom, when viewed in the light most favorable to the

Commonwealth as verdict-winner, are sufficient to establish all elements of

the offense beyond a reasonable doubt. Trinidad, 96 A.3d at 1038. The

crime of contraband is defined, in relevant part, as follows:

(a) Controlled substance contraband to confined persons
prohibited.--A person commits a felony of the second degree if
he … brings into any prison … any controlled substance included
in Schedules I through V of the act of April 14, 1972 (P.L. 233,
No. 64), known as The Controlled Substance, Drug, Device and
Cosmetic Act,1 (except the ordinary hospital supply of the prison
or mental hospital) without a written permit signed by the
physician of such institution, specifying the quantity and quality
of the substance which may be furnished to any convict, inmate,
or employee in the prison or mental hospital, the name of the
prisoner, inmate, or employee for whom, and the time when the
same may be furnished, which permit shall be delivered to and
kept by the warden or superintendent of the prison or mental
hospital.

1 35 P.S. § 780-101 et seq.

18 Pa.C.S. § 5123(a).

We first note that the crime of contraband does not contain a scienter

or specific-intent element. However, as Appellant points out, the Crimes

Code states:

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(a) Minimum requirements of culpability.--Except as
provided in section 305 of this title (relating to limitations on
scope of culpability requirements), a person is not guilty of an
offense unless he acted intentionally, knowingly, recklessly or
negligently, as the law may require, with respect to each
material element of the offense.

18 Pa.C.S. § 302(a).

Reading 18 Pa.C.S. § 5123(a) and 18 Pa.C.S. § 302(a) together, we

are satisfied that the Commonwealth provided sufficient evidence that

Appellant intentionally brought marijuana into the Scranton Police

Headquarters. The record reveals that after Appellant was arrested, he was

advised that he was going to a secure facility. N.T., 5/16/16, at 56. The

officers informed Appellant that he would be charged with additional crimes

if he brought contraband into the facility. Id. Appellant said that he had

nothing on his person, and he entered the facility with marijuana secreted

under his scrotum.

There is simply no scenario where we can conclude that Appellant

unknowingly, accidentally, or inadvertently hid marijuana under his scrotum.

Rather, when we view the evidence in the light most favorable to the

Commonwealth, we find that Appellant entered Scranton Police

Headquarters intentionally hiding marijuana on his person. Additionally,

Appellant’s argument that he did not intend to enter Police Headquarters

because he was brought there against his will, Appellant’s Brief at 27, is

unavailing. It is axiomatic that individuals are most often taken into police

custody against their will because few people desire to go to jail. However,

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as noted, Appellant, of his own free will, chose to hide marijuana on his

person. After his arrest, Appellant was informed that he would be entering a

police facility and that possession of contraband would result in additional

charges. Despite this explicit warning, Appellant elected not to inform the

officers that he possessed marijuana, which was his right, but it resulted in

him entering the facility with contraband by his own choosing. Appellant

attempts to argue that he was forced into a position of incriminating himself

if he had informed the officer that he possessed the marijuana. Id.

Appellant misses the point. Had Appellant informed Officer Golden that he

possessed marijuana, he may well have been charged with possession;

however, by not informing Officer Golden, he entered the Scranton Police

Headquarters committing the crimes of possession of marijuana and the

additional crime of contraband. For these reasons, no relief is due.

In Appellant’s third issue, he alleges that the trial court erred in

denying his motion to suppress because Appellant’s detention was based

only on suspicion that he was violating the terms of his parole and not upon

a reasonable suspicion that he was engaged in criminal activity. Appellant’s

Brief at 16. For the reasons that follow, we disagree.

We begin with our well-established standard of review for the denial of

a suppression motion.

In evaluating a suppression ruling, we consider the evidence of
the Commonwealth, as the prevailing party below, and any
evidence of the defendant that is uncontradicted when examined
in the context of the record. Commonwealth v. Sanders, 42

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A.3d 325, 330 (Pa. Super. 2012). This Court is bound by the
factual findings of the suppression court where the record
supports those findings and may only reverse when the legal
conclusions drawn from those facts are in error. Id.

Commonwealth v. Haynes, 116 A.3d 640, 644 (Pa. Super. 2015).

Additionally, this Court examines only the evidence offered at the

suppression hearing. In re L.J., 79 A.3d 1073, 1085-1087 (Pa. 2013).

Next, we note that there are three levels of interaction between police

officers and citizens:

The first of these is a “mere encounter” (or request for
information) which need not be supported by any level of
suspicion, but carries no official compulsion to stop or to
respond. The second, an “investigative detention” must be
supported by a reasonable suspicion; it subjects a suspect to a
stop and a period of detention, but does not involve such
coercive conditions as to constitute the functional equivalent of
an arrest. Finally, an arrest or “custodial detention” must be
supported by probable cause.

Commonwealth v. Ranson, 103 A.3d 73, 77 (Pa. Super. 2014) (quoting

Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)).

When Officer Golden first approached Appellant, the interaction was a

mere encounter. However, as Officer Golden testified, a number of concerns

increased his level of suspicion. We point out that the following factors

impact an officer’s reasonable suspicion that an individual is engaging in

criminal conduct:

A police officer may detain an individual in order to
conduct an investigation if that officer reasonably suspects that
the individual is engaging in criminal conduct. This standard, less
stringent than probable cause, is commonly known as
reasonable suspicion. In order to determine whether the police

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officer had reasonable suspicion, the totality of the
circumstances must be considered. In making this
determination, we must give due weight ... to the specific
reasonable inferences the police officer is entitled to draw from
the facts in light of his experience. Also, the totality of the
circumstances test does not limit our inquiry to an examination
of only those facts that clearly indicate criminal conduct. Rather,
even a combination of innocent facts, when taken together, may
warrant further investigation by the police officer.

Commonwealth v. Freeman, 150 A.3d 32, 36-37 (Pa. Super. 2016)

(internal quotation marks and citation omitted).

The record reveals that a possible parole violation was not the only

basis upon which Officer Golden based his suspicion of criminal activity.

Rather, Officer Golden testified that when he approached Appellant’s vehicle,

Appellant asked to exit the car to speak with the officer. N.T., 3/31/16, at

13. At this point, Officer Golden asked whether Appellant was on probation

or parole. Id. Appellant responded in the affirmative. Id. Officer Golden

testified that he then wanted to contact the Pennsylvania Board of Probation

and Parole (“State Parole”) to find out who was supervising Appellant. Id.

at 15. However, because Officer Golden knew that he would have to make a

telephone call and take his focus off of Appellant, for his safety, he asked

Appellant if he could search Appellant’s person. Id. at 18. At this juncture,

Appellant was not detained, and the interaction remained a mere encounter.

See Ranson, 103 A.3d at 77 (a mere encounter need not be supported by

any level of suspicion, but it carries no official compulsion to stop or to

respond). However, Appellant agreed to the search, and it was during this

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consensual search of Appellant’s person that Officer Golden detected an odor

of marijuana at Appellant’s midsection. Id. This smell of marijuana was

sufficient to establish reasonable suspicion that criminal activity was afoot.

See Commonwealth v. Smith, 85 A.3d 530 (Pa. Super. 2014) (stating

that the smell of marijuana emanating from the appellant’s basement

established reasonable suspicion to conduct a search for the marijuana). It

was at this point that Officer Golden contacted State Parole. Id. at 18.

Officer Golden testified that when he contacted State Parole, Appellant’s

demeanor changed. Id. Appellant became agitated and told Officer Golden

he feared for his life. Id. While Officer Golden called State Parole,

Appellant called 911, and Appellant remained on the phone until back-up

officers arrived on the scene. Id. While Officer Golden was on the phone

with State Parole, he learned that Appellant was not to be in Scranton as a

condition of his parole. Id. at 16. When back-up officers arrived, based on

the aforementioned reasonable suspicion, a canine conducted a sniff of the

exterior of the vehicle. Id. at 19, 23. Upon sniffing the car, the canine

alerted to the smell of a controlled substance. Id. This canine sniff

provided probable cause to search the interior of the vehicle. See

Commonwealth v. Hernandez, 935 A.2d 1275, 1285 (Pa. 2007) (stating

that once a canine sniff of a vehicle’s exterior triggers a positive indication,

reasonable suspicion of contraband in the vehicle ripens into probable cause)

(citing Commonwealth v. Rogers, 849 A.2d 1185, 1192 (Pa. 2004)).

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Thus, when the officers searched the interior of the vehicle, they possessed

probable cause. Accordingly, the search of the vehicle was lawful, the

heroin recovered from the vehicle was properly seized, Appellant was legally

arrested, and the search incident to Appellant’s lawful arrest revealed the

marijuana. Appellant is entitled to no relief.

In his final claim of error, Appellant avers that the trial court erred in

defining “prison” in its jury instruction. Appellant asserts that this alleged

error permitted the jury to improperly conclude that the term “prison,” as

used in 18 Pa.C.S. § 5123(a), could include the Scranton Police

Headquarters. We conclude that Appellant is entitled to no relief on this

claim of error.

To determine whether a jury instruction faithfully
characterized the statute upon which it is based, we first must
determine the scope and meaning of the provision in question,
thus furnishing a rubric for our inquiry. Statutory interpretation
presents a question of law, which we resolve de novo. Once we
have established the meaning and scope of the statute, we must
determine whether the trial court, which enjoys broad discretion
in fashioning its jury charge, clearly, adequately, and accurately
related the law, so understood, to the jury. Only when the court
commits an abuse of discretion or provides the jury with an
inaccurate statement of law is there reversible error.
Furthermore, even if an instruction is erroneous, relief is due
only when the error is prejudicial.

Commonwealth v. Veon, 150 A.3d 435, 444 (Pa. 2016) (internal citations

and quotation marks omitted).

As stated above, the crime of contraband is defined, in relevant part,

as follows:

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(a) Controlled substance contraband to confined persons
prohibited.--A person commits a felony of the second degree if
he … brings into any prison … any controlled substance included
in Schedules I through V of the act of April 14, 1972 (P.L. 233,
No. 64), known as The Controlled Substance, Drug, Device and
Cosmetic Act, (except the ordinary hospital supply of the prison
or mental hospital) without a written permit signed by the
physician of such institution, specifying the quantity and quality
of the substance which may be furnished to any convict, inmate,
or employee in the prison or mental hospital, the name of the
prisoner, inmate, or employee for whom, and the time when the
same may be furnished, which permit shall be delivered to and
kept by the warden or superintendent of the prison or mental
hospital.

18 Pa.C.S. § 5123(a) (internal footnote omitted) (emphasis added).

Pursuant to the statute, the Commonwealth must establish that Appellant

brought contraband into a “prison.” Appellant is correct in noting that

Section 5123 does not define the term “prison.”

The trial court addressed this issue as follows:

[Appellant] was charged with one count of
Contraband/Controlled Substance in violation of 18 Pa.C.S.A §
5123(a). This count pertains to the small amount of marijuana
discovered under [Appellant’s] scrotum while he was being
detained, post-arrest at the Scranton Police Headquarters. At the
conclusion of the testimony at trial, [Appellant’s counsel]
objected to the proposed jury instruction which was read to the
jury. (N.T. 5/16/2016 at p. 117-130). This Court overruled
counsel’s objection. Id.

The Pennsylvania Standard Jury Instruction for section
5123(a) reads in pertinent part:

The Defendant has been charged with providing contraband. To
find the Defendant guilty of this offense, you must find that the
following elements have been proven beyond a reason[able]
doubt:

First, that the Defendant:

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(b) brought into a prison a controlled substance so classified
under Pennsylvania law. I instruct you that marijuana is a
controlled substance; and

Second that the Defendant did so without a written permit
signed by the physician of the prison.

Pa. Standard Jury Instruction 15.5123(a)

At trial, the defense argued that the holding cell at the
Scranton Police Headquarters did not satisfy the definition of a
prison as contemplated by the Pennsylvania legislature. Id. This
Court researched this issue and included two definitions from
Merriam Webster’s Dictionary in the jury charge. The added
language included:

“Prison” is defined by Merriam Webster’s Dictionary as a building
where people are kept as punishment for a crime, or while they
are waiting to go to court or a place or state of confinement,
especially for criminals.

(N.T. 5/16/2016 at p. 131, 179)

Thereafter, the jury returned a verdict of guilty on the one
(1) count of possession of contraband, as well as the remaining
charges. In order to assess the allegations of error, we must first
look to the Pennsylvania Crimes Code itself. The Crimes Code
provides, “The provisions of this title should be construed
according to the fair import of their terms...” 18 Pa.C.S.A § 105.
See also Commonwealth v. Williams, 525 Pa. 216, 220 (1990).
In assessing the fair import of 18 Pa.C.S.A § 5123(a), the
Supreme Court of Pennsylvania recognized “the fair import of
the present statu[t]e is that there are certain places where it is
impermissible to bring certain enumerated substances. These
consist of any 1) prison...” Williams at p. 220. The Court in
Williams stated “The Legislative purpose in enacting 18 Pa.C.S.A
5123(a) was obviously to prevent the acquisition of contraband
substances by persons confined to prisons and mental hospitals.”
Id[.] at p. 220-221. Further, the Court in Williams rejected the
notion that in order to be convicted of this offense, the actor
must have had the intention of transferring it to other prisoners
or inmates. Id[.] at p. 221.

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Additionally, Section 5123(a) does not define the word
“prison.” As such, this Court is required to construe undefined
words according to their “common and approved usage.” 1[]
Pa.C.S.A § 1921(a). The practice of utilizing “a dictionary to
construe undefined words in a statue according to their common
and approved usage” has been used by Pennsylvania courts in
previous cases. Commonwealth v. Hood, 392 Pa.Super 388, 391
(Pa.Super. 1990). In the present case, the argument posed by
defense counsel turned on the definition of the word “prison.”
This Court used the dictionary to determine the “common and
approved usage” of that word.

As such, it is clear that the legislative purpose of Section
5123(a) was not compromised by the interpretation of the word
“prison,” thus the argument by [Appellant] is without merit.

Pa.R.A.P. 1925(a) Opinion, 4/20/17, at 7-9. We discern no error in the trial

court’s definition of prison.

As discussed above, it is undisputed that Section 5123 does not define

prison, and the trial court utilized the dictionary to define prison for the jury

as “a building where people are kept as punishment for a crime, or while

they are waiting to go to court or a place or state of confinement.” N.T.,

5/16/16, at 179. We conclude that the trial court’s definition was apt, and

we find instructive the definition of prison found in the Pennsylvania Code

concerning county jails:

Prison--A place, institution, building (or part thereof), set of
buildings or area (whether or not enclosing a building or set of
buildings) that is used for the lawful custody of individuals.

37 Pa. Code § 95.220a (Definitions). The definition provided by the trial

court in this matter clearly, adequately, and accurately related the law to the

jury. Veon, 150 A.3d at 444. Indeed, Appellant was in a place of

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confinement and in lawful custody at the Scranton Police Headquarters, and

it was at this location that he was discovered to be in possession of

marijuana. After review, we conclude there was no abuse of discretion or

error in the trial court’s definition of prison in the jury charge.

For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judge Panella joins the Memorandum.

Justice Fitzgerald files a Concurring & Dissenting Statement.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/10/2017

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