Com. v. Arnold, D.

J-S25014-22

2022 PA Super 185

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID KENNETH ARNOLD :
:
Appellant : No. 38 WDA 2022

Appeal from the Judgment of Sentence Entered October 21, 2021
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-CR-0000268-2020

BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.

OPINION BY BENDER, P.J.E.: FILED: October 20, 2022

Appellant, David Kenneth Arnold, appeals from the judgment of

sentence of an aggregate term of 2-4 years’ incarceration, imposed after a

jury found him guilty under two provisions of the contraband statute involving

separate acts.1 Appellant challenges the constitutionality of the Contraband

Offense, alleging that its ostensible lack of a mens rea element violates his

due process rights. Appellant also challenges the weight and sufficiency of

the evidence supporting the Possession Offense. After careful review, we

vacate Appellant’s judgment of sentence and remand for a new trial with

____________________________________________

1 See 18 Pa.C.S. §§ 5123(a) (“controlled substance contraband to confined
persons prohibited”) (hereinafter “Contraband Offense”), and 5123(a.2)
(“possession of controlled substance contraband by inmate prohibited”)
(hereinafter “Possession Offense”).
J-S25014-22

respect to the Contraband Offense. Otherwise, we affirm with respect to

Appellant’s conviction for the Possession Offense.

Unfortunately, the trial court did not provide a summary of the facts

adduced at Appellant’s September 22, 2021 jury trial in its Pa.R.A.P. 1925(a)

opinion. The following factual summary was provided by Appellant in his

Statement of Case:2

On January 22, 2020, Appellant was detained by Butler County
Adult Probation for a violation and was subsequently committed
to the Butler County Prison. Appellant was taken into the Butler
County Prison and placed into a holding cell in the main
processing/intake area. While in processing[,] Appellant was
searched by the corrections officers. Appellant is a severe
hemophiliac and is an []above-the-knee[] amputee who has a
prosthetic leg. Appellant’s prost[he]tic leg has a foot which he
outfits with a sock and shoe. Appellant has no feeling below the
knee. At the time of his detention, Appellant possessed a valid

____________________________________________

2 The Commonwealth indicates in its brief that it “generally adopts and accepts
[Appellant]’s [factual summary], with the understanding that [Appellant]’s
factual narrative reiterates [his] trial defenses, defenses that were ultimately
refuted by the Commonwealth’s trial evidence and the jury’s verdict.”
Commonwealth’s Brief at 1. Accordingly, where appropriate, we have added
context to Appellant’s factual narrative.

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prescription for Suboxone[3] and used that controlled substance as
part of his addiction therapy.[4]

While in the processing department of the Butler County Prison,
Appellant was subject to search. Correction’s Officer Summerville
searched Appellant. Appellant undressed and removed his
prosthetic leg willingly and voluntarily. Officer Summerville
removed the shoe and sock and located a piece of folded paper
which contained a single white pill. The pill was confiscated and
later identified as a schedule III-controlled substance.[5] Appellant
denied specific knowledge of the single pill[’]s presence and
indicated he []forgot[] it was there. He testified at trial to the
sequence of events that led him to forget such item, which
included the overdose death of his son’s mother, the loss of his
son to [Children and Youth Services], as well as his prescription
medications being stolen on prior occasions.[6] Appellant could
not feel the pill in his sock/shoe due to the amputation and
____________________________________________

3 As referred to in this Opinion, “Suboxone” and “Subutex” are name-brand
pharmaceutical products, both of which contain the substance buprenorphine.
See N.T. Trial, 9/22/21, at 62 (testimony of Stacy Cox, the Commonwealth’s
drug identification expert). Buprenorphine is a Schedule III controlled
substance under the Controlled Substance, Drug, Device, and Cosmetic Act.
Id.; see also 35 P.S. § 780-104(2)(i)(11). However, Suboxone and Subutex
are distinct in that Suboxone contains both buprenorphine and naloxone,
whereas Subutex contains only buprenorphine.

4 Although Appellant testified that he possessed a valid prescription for
Suboxone, see N.T. Trial at 75, and the Commonwealth did not attempt to
refute that claim at trial, Appellant did not seek to admit his prescription into
evidence. In any event, there was no evidence that Appellant notified prison
officials that he possessed a prescription for Suboxone when he was being
processed at the Butler County Prison.

5 The Commonwealth’s expert stated that the markings on the pill indicated
that it was Subutex, not Suboxone. N.T. Trial at 64.

6 Appellant admitted that, because he ran out of his own prescription for
Suboxone (which he believed had been stolen from him), the pill discovered
by prison officials was one he had taken from either his son’s mother or from
his own mother, both of whom had prescriptions for Subutex. N.T. Trial at
86-88. Thus, regardless of whether Appellant had a valid prescription for
Suboxone, he admitted that the pill found in his prosthetic leg was not
obtained by him pursuant to that prescription.

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completely forgot about its presence. The pill was confiscated by
the Corrections Officer and ultimately became the subject of the
… Contraband [Offense].

Appellant was then committed to the Butler County Prison from
the processing department, given his prosthetic leg back, and
issued a prison wheelchair. Appellant was strip searched on[] at
least[] two occasions[,] with no other items of contraband being
located. Appellant was detained at the Butler County Prison
awaiting his probation violation hearing. On or about January 27,
2020, corrections officers searched Appellant’s prison cell at the
Butler County Prison. While Appellant was taking a shower,
corrections officers noticed food items within his cell. Keeping
food past mealtime is considered a misconduct per Butler County
Prison rules. So, the corrections officers conducted a complete
cell search. Nothing was found inside Appellant’s cell. However,
Appellant’s prison[-]issued wheelchair was outside of his assigned
cell when Correction Officer McClelland noticed a []small hole[] in
the wheelchair. Officer McClelland and Officer Wingrove searched
the wheelchair. In fact, they completely disassembled the
wheelchair down to its component parts and cut apart the seat.
The wheelchair was destroyed in the process. Upon disassembly,
the officers found three (3) pieces of waxy tape paper, orange in
color, and a fingertip portion of a rubber glove which contained
[]a brown substance[] inside of it. Officers confronted
Appellant[,] who completely denied having contraband or hiding
anything within the wheelchair. The items found within the
wheelchair were confiscated and Appellant was ultimately charged
with [the Possession Offense].[7]

Appellant’s Brief at 14-17.

The parties agree to the following recitation of the procedural history of

this case:

On September 22, 2021, following trial, a jury convicted
[Appellant] … of [the Contraband Offense and the Possession
Offense]. The Honorable Timothy F. McCune sentenced Appellant
on October 21, 2021, to an aggregate term of not less than
____________________________________________

7The contraband discovered inside the wheelchair was determined to be “a
Suboxone sublingual film[,]” N.T. Trial at 65, containing buprenorphine, id. at
62.

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twenty-four (24) months and not more than forty-eight (48)
months in state prison. The sentence imposed is mandatory as
provided for [by Section 5123(a.1), which states] that “[a]ny
person convicted of subsection (a) shall be sentenced to a
minimum sentence of at least two years of total confinement,
notwithstanding any other provision of this title or any other
statute to the contrary.” Appellant was also sentenced on [the
Possession Offense] to a period of total confinement of twelve (12)
to twenty-four (24) months to be served concurrently with the
Contraband [O]ffense. There was no probation imposed on either
count.

On October 27, 2021, Appellant filed a post-sentence motion.
Appellant sought [j]udgment of [a]cquittal on both charges[,]
raising and preserving the various constitutional challenges
contained herein.

Appellant also sought a [n]ew [t]rial preserving the various
arguments regarding insufficient evidence and weight given to
support Appellant’s convictions on both charges. Following oral
arguments, the trial court denied Appellant’s post-sentence
motion on December 30, 2021.

[A n]otice of appeal was filed on January 6, 2022.[8]
____________________________________________

8 The trial court states that the instant appeal is infirm under Pa.R.A.P. 301(b)
because Appellant failed to file separate appeals from his judgment of
sentence and the order denying his post-sentence motions. See Trial Court
Opinion (“TCO”), 3/3/22, at 1; Pa.R.A.P. 301(b) (“Every order shall be set
forth on a separate document.”). The trial court is mistaken. Under
Pa.R.Crim.P. 720, when a timely post-sentence motion is filed, “the notice of
appeal shall be filed” within 30 days of the order deciding the motion (on the
merits or by operation of law). Pa.R.Crim.P. 720(A)(2) (emphasis added). “If
the defendant does not file a timely post-sentence motion, defendant’s notice
of appeal shall be filed within 30 days of imposition of sentence, except as
provided in paragraph (A)(4).” Pa.R.Crim.P. 720(A)(3). These provisions do
not contemplate two, separate notices of appeal. Rather, “[w]hen post-
sentencing motions are not filed, the judgment of sentence constitutes a
final and appealable order for purposes of appellate review and any appeal
therefrom must be filed within thirty (30) days of the imposition of
sentence[,]” however, “[i]f post-sentencing motions are timely filed, … the
judgment of sentence does not become final for purposes of appeal
until the trial court disposes of the motion, or the motion is denied by
(Footnote Continued Next Page)

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J-S25014-22

Appellant’s Brief at 13-14 (citation omitted). Appellant filed a timely, court-

ordered Rule 1925(b) statement on January 27, 2022. The trial court issued

its Rule 1925(a) opinion on March 3, 2022.

Appellant now presents the following questions for our review:

I. Whether the trial court abused its discretion, or erred as a
matter of law, when it denied Appellant’s motion for
judgment of acquittal on the Contraband [Offense] where
Appellant ar[gu]ed [the] statute and associated jury
instructions [are] unconstitutional and violative of his
fund[a]mental right to due process as secured by the
constitutions of the United States and this Commonwealth?

II. Whether the trial court abused its discretion, or erred as a
matter of law, when it denied Appellant’s motion for
judgment of acquittal or new trial on the … Possession
[Offense] where Appellant uncontrovertibly testified that he
did not knowingly or actually possess such items in a prison
issued wheelchair?

III. Whether the Commonwealth presented insuffic[i]ent
evidence to sustain the convictions against Appellant?

Appellant’s Brief at 12 (unnecessary capitalization omitted).

I.

In his first claim, Appellant asserts that the Contraband Offense, and

the related instruction defining the offense as read to the jury, are “violative

of his fundamental right to procedural and substantive due process rights as
____________________________________________

operation of law.” Commonwealth v. Borrero, 692 A.2d 158, 159 (Pa.
Super. 1997) (emphasis added). Thus, no distinct appeal arose from the order
denying post-sentence motions in this case. Rather, the pendency of
Appellant’s timely-filed, post-sentence motions tolled the 30-day period for
filing a notice of appeal from the underlying judgment of sentence. Therefore,
Appellant was not required to file separate appeals from his judgment of
sentence and the order denying his post-sentence motions.

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J-S25014-22

secured by” both the Pennsylvania and federal constitutions.9 Id. at 22. He

argues that the Contraband Offense “and its associated jury instruction is

constitutionally infirm and illegal because it is a strict liability offense which

lacks a specific mens rea requirement.” Id. Therefore, Appellant urges this

Court to “declare the Contraband [Offense] and its associated instruction as

violative of substantive and procedural due process.” Id. at 23. The trial

court determined that the explicit, plain language of the Contraband Offense

demonstrated that the General Assembly intended it to be a strict-liability

crime, and reads prior cases addressing the statute, discussed infra, as having

____________________________________________

9 The trial court stated that this issue was waived due to Appellant’s ostensible
failure to raise it with adequate specificity in accordance with Pa.R.A.P.
1925(b)(4)(v) (“Each error identified in the Statement will be deemed to
include every subsidiary issue that was raised in the trial court; this provision
does not in any way limit the obligation of a criminal appellant to delineate
clearly the scope of claimed constitutional errors on appeal.”). We note that
Appellant’s statement of this issue in his Rule 1925(b) statement is identical
to the claim as presented to this Court in his Statement of the Questions
Presented. See Pa.R.A.P. 1925(b) Statement, 1/27/22, at 1 ¶ 1; see also
Appellant’s Brief at 12. The trial court did not elaborate on why it believed
Appellant’s claim lacked adequate specificity for it to address the issue.
However, the court’s alternative analysis on the merits demonstrates that it
was well-aware of the nature and scope of Appellant’s constitutional challenge
to the Contraband Offense. See TCO at 2-3. The court was first advised of
the nature and scope of Appellant’s claim (regarding both the statute and the
related instructions) when the matter arose during the parties’ discussion of
jury instructions at trial. See N.T. Trial at 111-15. Appellant further distilled
and preserved his claim that both the statute and jury instructions violated
his due process rights in his post-sentence motion. See Appellant’s Post-
Sentence Motion, 10/27/21, at 2-3 ¶¶ 8-16 (unnumbered pages). Thus, we
conclude that Appellant’s first issue challenging the constitutionality of the
Contraband Offense, as well as the subsidiary claim regarding the
constitutionality of the instructions given to the jury for that offense, were not
waived in his Rule 1925(b) Statement.

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upheld its constitutionality despite the ostensible absence of a scienter

element. See TCO at 2-3.

For the reasons that follow, and contrary to the trial court’s analysis, we

hold that the Contraband Offense, Section 5123(a), contains a default mens

rea of recklessness, provided by 18 Pa.C.S. § 302(c). For that reason, the

Contraband Offense does not offend due process principles that disfavor strict

liability offenses. Consequently, Appellant is not entitled to any form of relief

premised upon the alleged unconstitutionality of the statute. However, the

trial court’s refusal to issue any mens rea instruction to the jury was premised

on its misreading of the Contraband Offense as a strict liability crime that did

not require one. Due to that error, Appellant is entitled to a new trial on the

Contraband Offense.

“As the constitutionality of a statute is a pure question of law, our

standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Omar, 981 A.2d 179, 185 (Pa. 2009). We are further

mindful of the following standards when reviewing the constitutionality of a

statute:

When interpreting a statute, the court must ascertain and
effectuate the intent of the legislature and give full effect to
each provision of the statute if at all possible. 1 Pa.C.S.[] §
1921(a); Commonwealth v. Brown, … 620 A.2d 1213,
1214 ([Pa. Super.] 1993); Commonwealth v. Edwards,
… 559 A.2d 63, 66 ([Pa. Super.] 1989)…. In construing a
statute to determine its meaning, courts must first
determine whether the issue may be resolved by reference
to the express language of the statute, which is to be read
according to the plain meaning of the words. 1 Pa.C.S.[] §

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1903(a). See Commonwealth v. Berryman, … 649 A.2d
961[, 965] ([Pa. Super.] 1994) (en banc).

When construing one section of a statute, courts must read
that section not by itself, but with reference to, and in light
of, the other sections because there is a presumption that
in drafting the statute, the General Assembly intended the
entire statute to be effective. 1 Pa.C.S.[] § 1922. See
Commonwealth v. Mayhue, … 639 A.2d 421, 439 ([Pa.]
1994); []Berryman, … 649 A.2d at 965. Statute headings
may be considered in construing a statute. 1 Pa.C.S.[] §
1924. However, the letter of the statute is not to be
disregarded under the pretext of pursuing its spirit. 1
Pa.C.S.[] § 1921(b); Commonwealth v. Reeb, … 593 A.2d
853, 856 ([Pa. Super.] 1991)….

Commonwealth v. Lopez, … 663 A.2d 746, 748 ([Pa. Super.]
1995).

It is axiomatic that: “[A]ny party challenging the
constitutionality of a statute must meet a heavy burden, for
we presume legislation to be constitutional absent a
demonstration that the statute ‘clearly, palpably, and
plainly’ violates the Constitution.” Konidaris v. Portnoff
Law Associates, Ltd., … 953 A.2d 1231, 1239 ([Pa.] 2008)
(citation omitted). The presumption that legislative
enactments are constitutional is strong. Commonwealth
v. McMullen, … 961 A.2d 842, 846 ([Pa.] 2008); see also
1 Pa.C.S. § 1922(3) ([stating that,] in ascertaining intent of
General Assembly in enactment of statute, presumption
exists that General Assembly did not intend to violate
federal and state constitutions). All doubts are to be
resolved in favor of finding that the legislative enactment
passes constitutional muster. Pennsylvanians Against
Gambling Expansion Fund, Inc. v. Commonwealth, …
877 A.2d 383, 393 ([Pa.] 2005). Moreover, “statutes are to
be construed whenever possible to uphold their
constitutionality.” In re William L., … 383 A.2d 1228, 1231
([Pa.] 1978).

DePaul v. Commonwealth, … 969 A.2d 536, 545–46 ([Pa.]
2009).

Commonwealth v. Presher, 179 A.3d 90, 92 (Pa. Super. 2018).

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As this Court has previously stated, “the concept of due process”

includes “a degree of protection against the imposition of criminal liability

without criminal intent on the part of the actor.” Commonwealth v. Heck,

491 A.2d 212, 219 (Pa. Super. 1985). However, this protection is not

absolute; “in certain cases[,] mens rea may be dispensed with completely if

the legislative intention is to create a strict liability crime.” Id.

In determining whether the legislature intends to create a strict liability

offense, the United States Supreme Court has reasoned that a criminal

statute’s silence as to a scienter requirement

by itself does not necessarily suggest that Congress intended to
dispense with a conventional mens rea element, which would
require that the defendant know the facts that make his conduct
illegal. On the contrary, we must construe the statute in light of
the background rules of the common law, see United States v.
United States Gypsum Co., 438 U.S. 422, 436–437 … (1978),
in which the requirement of some mens rea for a crime is firmly
embedded. As we have observed, “[t]he existence of a mens rea
is the rule of, rather than the exception to, the principles of Anglo–
American criminal jurisprudence.” Id.[] at 436 … (internal
quotation marks omitted). See also Morissette v. United
States, 342 U.S. 246, 250 … (1952) (“The contention that an
injury can amount to a crime only when inflicted by intention is no
provincial or transient notion. It is as universal and persistent in
mature systems of law as belief in freedom of the human will and
a consequent ability and duty of the normal individual to choose
between good and evil[.]”).

Staples v. U.S., 511 U.S. 600, 605 (1994) (some internal citations omitted).

Despite this general reliance “on the strength of the traditional rule,” the

Stapes Court did not hold that the absence of mens rea requirement in

criminal statutes is always unconstitutional. Id. at 606. Instead, the Court

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advised that “offenses that require no mens rea generally are disfavored,”

and that “some indication of congressional intent, express or implied, is

required to dispense with mens rea as an element of a crime.” Id.

Likewise, the Pennsylvania Supreme Court has recognized that

“absolute liability criminal offenses are generally disfavored[] and, absent

indicia of legislative intent to dispense with a mens rea, a statute will not be

held to impose strict liability.” Commonwealth v. Moran, 104 A.3d 1136,

1149 (Pa. 2014) (quotation marks omitted). Nevertheless, the Moran Court

recognized a limited exception to the general rule disfavoring strict liability

offenses:

Although the imposition of strict liability is generally disfavored,
this Court has recognized the legislature may create statutory
offenses dispensing with a mens rea in fields that are essentially
non-criminal in order “to utilize the machinery of criminal
administration as an enforcing arm for social regulations of a
purely civil nature, with the punishment totally unrelated to
questions of moral wrongdoing or guilt.” Commonwealth v.
Koczwara, … 155 A.2d 825, 827–28 ([Pa.] 1959). The penalty
for such offenses concerning the public welfare is generally
relatively light. Id.[] at 827.

Moran, 104 A.3d at 1149.

Pennsylvania’s statutory scheme for criminal offenses clearly reflects the

traditional rule of criminal jurisprudence as described in Staples and Moran.

Our General Assembly expressed its preference for mens rea requirements in

Section 302(a) of Title 18, stating: “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

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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). Anticipating that explicit scienter requirements might be

omitted from the definitions of crimes under Title 18, the General Assembly

further provided a default mens rea element under Section 302(c). That

provision provides as follows: “Culpability required unless otherwise

provided.--When the culpability sufficient to establish a material element of

an offense is not prescribed by law, such element is established if a person

acts intentionally, knowingly or recklessly with respect thereto.” 18 Pa.C.S. §

302(c). Accordingly, our Supreme Court has “repeatedly held [that Section]

302 provides the default level of culpability where a criminal statute does not

include an express mens rea.” Moran, 104 A.3d at 1150. Indeed, as noted

by the Moran Court:

The comment to [Section] 302 also supports this conclusion,
providing:

The purpose of this section is to clearly define the various
mental states upon which criminal liability is to be based.
Under existing law the words “wilfully” or “maliciously” are
used in many cases. However, these words have no settled
meaning. In some instances there is no expressed
requirement concerning the existence of mens rea. These
defects in existing law are remedied by this section which
sets forth and defines the culpability requirements and
eliminates the obscurity of the terms “malice” and “wilful.”

18 Pa.C.S. § 302 cmt. (emphasis added) (internal citations
omitted).14
14 Furthermore, the explanatory note to [Section] 2.02(3)
of the [Model Penal Code (“MPC”)], on which [Section]
302(c) is based, see id. (“This section is derived from

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Section 2.02 of the [MPC].”), provides when the General
Assembly intends intent, knowledge, or recklessness to
suffice for the establishment of culpability for a particular
offense, “the draftsmen need make no provision for
culpability; it will be supplied by this subsection.” MPC §
2.02 explanatory note (2001). Accordingly, the legislature’s
refraining from providing an express culpability requirement
… indicates its intent that [Section] 302(c)’s default mens
rea apply.

Moran, 104 A.3d at 1149–50.

The Contraband Offense, as recognized by the trial court, does not

contain an explicit mens rea:

A person commits a felony of the second degree if he sells, gives,
transmits or furnishes to any convict in a prison, or inmate in a
mental hospital, or gives away in or brings into any prison, mental
hospital, or any building appurtenant thereto, or on the land
granted to or owned or leased by the Commonwealth or county
for the use and benefit of the prisoners or inmates, or puts in any
place where it may be secured by a convict of a prison, inmate of
a mental hospital, or employee thereof, 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) (footnote omitted). As applicable to the circumstances

of this case, a violation of the explicit terms of the Contraband Offense

occurred if Appellant: 1) brought, 2) into the prison, 3) a Schedule I-V

controlled substance, 4) without written permission signed by the prison

physician. The trial court concluded that the “plain language” of this statute

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shows that “it is one of strict liability with no room to argue intent, mens r[ea,]

or de minimus amounts [of the prohibited substances].” TCO at 2-3. Although

we agree with the trial court that the Contraband Offense does not contain

any explicit mens rea, our analysis does not stop with that omission.

As the Staples Court advised, the absence of an express mens rea in a

criminal statute does not alone demonstrate a legislature’s intent to impose

strict liability for a crime, given that principles of due process generally favor

a scienter requirement for criminal offenses. See Staples, 511 U.S. at 605.

And, in Moran, the Pennsylvania Supreme Court held that the omission of a

mens rea from the definition of a criminal offense instead implies that a defect

exists in the statute that is remedied by Section 302. Moran, 104 A.3d at

1149–50. Section 302(a) expresses the General Assembly’s own preference

against strict liability in the Crimes Code, and Section 302(c) explicitly

provides a mens rea when it is otherwise absent from the definition of a crime.

Thus, while due process permits the General Assembly to create strict

liability offenses as exceptions to the general rule, we ascertain no intent to

do so here merely from the legislature’s failure to include an explicit scienter

element within the text of Section 5123(a). What Section 5123(a) omits,

Section 302(c) provides. Moreover, our rationale in rejecting the trial court’s

conclusion that the Contraband Offense is a strict liability offense is further

buttressed by the fact that Section 5123(a) is defined in the Crimes Code, and

carries with it a mandatory minimum sentence of two years’ incarceration.

Therefore, it does not resemble an “essentially non-criminal” offense with a

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“relatively light” penalty, for which strict liability offenses are sometimes

permissible. Moran, 104 A.3d at 1149.

Additionally, our review of the authorities cited by the trial court reveals

that none of the cases cited by the court suggested, much less held, that

Section 5123(a) is a strict liability offense. In Commonwealth v. Williams,

579 A.2d 869 (Pa. 1990), for instance, our Supreme Court considered whether

“the mere possession of marijuana by a visitor to a prison, absent an intent

to deliver the substance to persons confined there, constitutes a

violation of [Section] 5123(a).” Id. at 870 (emphasis added). The lower

courts had interpreted the phrase, “for the use and benefit of the prisoners or

inmates,” as used in the Contraband Offense, to mean “that criminal liability

does not attach unless the purpose of bringing the substance into the prison

was ‘for the use and benefit of the prisoners or inmates.’” Williams, 579 A.2d

at 870 (quoting 18 Pa.C.S. § 5123(a)). The Williams Court rejected that

reading of the statute, concluding instead that the “phrase does not modify

the word ‘brings’ but rather modifies the language to which it is directly

attached, to wit, ‘on the land granted to or owned or leased by the

Commonwealth or county.’” Id. (quoting 18 Pa.C.S. § 5123(a)). The

Williams Court also discussed the legislative purpose behind Section 5123(a),

but only regarding whether the specific mens rea erroneously imposed by the

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lower court comported with the General Assembly’s intent.10 The Court did

not address whether Section 5123(a) was a strict liability crime without any

scienter element; instead, it only rejected an erroneous interpretation of the

text of the statute. Importantly, the Williams Court did not consider or

discuss the default mens rea provided by Section 302(c), nor did its analysis

touch upon the concept of strict liability. Consequently, the Williams Court

neither held nor presumed that that Section 5123(a) is a strict liability offense,

contrary to the trial court’s interpretation of that case.

In Commonwealth v. Olavage, 894 A.2d 808 (Pa. Super. 2006), also

cited by the trial court, Olavage was convicted of the Contraband Offense for

reentering a prison, at the end of his work-release shift, with

____________________________________________

10 The Court stated:

The legislative purpose in enacting 18 Pa.C.S. § 5123(a) was
obviously to prevent the acquisition of contraband substances by
persons confined in prisons and mental hospitals. Although this
purpose would be served to some extent by prescribing
punishment for persons who bring contraband substances into
institutions with the intention of transferring them to prisoners or
inmates, there would still be a risk, perhaps a substantial one,
that substances brought into institutions without such an intent
might still fall into the hands of such persons. We believe that, in
recognition of this risk, and in response to the need to address the
serious problems posed by infiltration of contraband substances
into institutional settings, the legislature chose to employ
comprehensive language that made the offense not dependent
upon whether a person bringing contraband substances into such
a setting did so with the intention of transferring them to the use
of persons confined there.

Id. at 871.

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methamphetamine in his possession. Id. at 810. He raised four claims, two

of which concerned whether he had been subjected to selective prosecution

by the Commonwealth. Id. at 811. In his third claim, Olavage argued that

his violation of Section 5123(a) should have been deemed a de minimus

infraction by the trial court, citing Williams. Id. at 812.11 In his fourth and

final claim, Olavage asserted “that it was not the intent of the Legislature for

the mandatory minimum sentence to apply to a [Section] 5123(a) conviction

based upon bringing contraband into a prison.” Id.12 None of the issues

addressed in Olavage concerned whether Section 5123(a) was a strict liability

offense.

The last case cited by the trial court was Commonwealth v. Sarvey,

199 A.3d 436 (Pa. Super. 2018), a collateral appeal from Sarvey’s numerous

drug convictions stemming from her possessing a bag of prohibited pills in

____________________________________________

11 In dicta, the Williams court had suggested that, “in an appropriate case[,]
the defense of a de minimis infraction might be asserted” against the
Contraband Offense, in the context of its discussion of hypothetical
circumstances where unwitting visitors would fall victim to the statute, and its
harsh mandatory sentence, for bringing their own prescribed medication into
an institution “with honorable intentions[.]” Williams, 579 A.2d at 871. The
Olavage Court held the trial court had not abused its discretion in dismissing
Olavange’s de minimus claim, noting its doubt that “the Pennsylvania
Supreme Court intended to include in this good faith, de minimis exception a
work-release prisoner who had strapped a cache of illegal methamphetamine
to his inner thigh.” Olavage, 894 A.2d at 812.

12This Court concluded that the plain language of Section 5123(a.1) applied
the mandatory-minimum sentence to violations of the Contraband Offense.
Id.

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prison and delivering “one-half of a tablet of Oxycodone and one tablet of

[]Ambien[] to another inmate.” Id. at 443. The Contraband Statute is only

briefly discussed in Sarvey in the Court’s analysis of the claim that Sarvey’s

sentence for that offense should have merged with her sentence for

possession with intent to deliver (“PWID”), 35 P.S. § 780-113(a)(30). Id. at

447-51. The Sarvey Court held that merger did not apply because, inter alia,

“PWID contains an element—namely the intent to deliver—that is absent in

the [Contraband Offense]. Similarly, the elements of [the Contraband

Offense] are satisfied when an individual brings a controlled substance into a

prison without a permit, regardless of whether they intended to deliver said

substance to an inmate.” Id. at 450. In defining the elements of the

Contraband Offense, the Sarvey Court cited Williams. Id. at 449. However,

at no point did the Sarvey Court identify Section 5123(a) as a strict liability

offense, nor did it discuss the mens rea of the Contraband Offense beyond

citing the holding in Williams that the statute did not require a showing of a

specific intent to deliver a prohibited substance to an inmate. Thus, none of

the cases cited by the trial court held that Section 5123(a) is a strict liability

offense, nor did any of those cases presuppose that it was.

Consequently, for the above reasons, we conclude that the trial court

erred in finding that the Contraband Offense imposes strict liability due to a

lack of an express mens rea in the text of Section 5123(a). Because that

provision does not prescribe the “culpability sufficient to establish a material

element of [the] offense[,]” Section 302(c) provides a minimum mens rea of

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recklessness. 18 Pa.C.S. § 302(c). Pertinent here, as several elements were

effectively conceded or otherwise uncontested by Appellant at his jury trial, to

prove a violation of the Contraband Offense, the Commonwealth was required

to show that Appellant acted “intentionally, knowingly or recklessly” in

bringing the Subutex pill with him into prison. Id. As Appellant’s

constitutional challenge to the statute is premised on the Contraband Offense

ostensibly lacking a mens rea, that aspect of his first claim is meritless.

However, Appellant requested an “ignorance or mistake” jury instruction

as to both the Contraband and Possession Offenses, arguing that he had

presented evidence (his testimony) that negated the mens rea of both

offenses, contending with respect to the Contraband Offense that he did not

possess knowledge that the Subutex pill was in his possession at the time he

entered the prison, or that “he was reasonably ignorant or mistaken

concerning the fact that he possessed [it].” See N.T. Trial at 111. The court

ultimately refused the instruction for the Contraband Offense based on its

erroneous conclusion that Section 5123(a) had no mens rea. Id. at 114

(“Doesn’t seem to be a mens rea of knowing in that crime. It does seem to

be a strict liability crime.”). Defense counsel noted that the court’s refusal to

issue the instruction would become an appellate issue, and further argued that

every offense involving the possession of a controlled substance has a mens

rea element pertaining to the accused’s knowledge that he or she possessed

the substance in question. See id. at 115. Appellant now maintains on appeal

that the jury instruction issued by the trial court was constitutionally infirm

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due to the omission of a scienter element, thereby depriving the jury “of the

ability to consider any evidence from [Appellant] as to [his] state of mind….”

Appellant’s Brief at 36. Appellant argues that the “jury instruction is violative

of his fundamental right to … due process” under the Pennsylvania and United

States Constitutions. Id. at 37.

After the trial court denied Appellant’s request for an ignorance/mistake

jury instruction as to the Contraband Offense, the prosecutor argued to the

jury that, “as far as [the Contraband Offense] is concerned, you are not going

to hear from the Judge that [Appellant] had to have knowledge that he was

bringing it into the prison.” N.T. Trial at 125. The prosecutor further stated:

It doesn’t matter if [Appellant] knew he was doing it or not. That
only comes into count on [the Possession Offense]. So, when you
are deliberating, the Judge is going to instruct you to follow the
law as he gives it to you. You may want to read a knowing
element into it. You might think that’s harsh. But that is the law.
And you have sworn an oath to follow that.

Id.

The trial court’s subsequent instruction to the jury regarding the

Contraband Offense omitted any mention of mens rea:

To find the defendant guilty of this offense, you must find the
following elements have been proven beyond a reasonable doubt.
First, that the defendant brought into a prison owned by the
County of Butler controlled substances so classified under
Pennsylvania law. I instruct you that buprenorphine hydrochloride
and Suboxone are controlled substances. And second, that the
defendant did so with without written permit signed by the
physician of the prison.

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J-S25014-22

Id. at 137. Because neither of these elements had been disputed at trial, the

trial court effectively instructed the jury to convict Appellant regardless of his

testimony that he forgot that the pill was still in the sock of his prosthetic leg

when he entered the prison. That testimony spoke directly to the mens rea

for the Contraband Offense. This jury-instruction error resulted from the trial

court’s misreading of Section 5123(a) as a strict liability offense, and its

related failure to apply the default mens rea mandated by Section 302(c).

This error prejudiced Appellant, as he only proffered a defense to the

Contraband Offense based on his claim that he was unaware that he had

brought the Subutex pill into the prison. While the jury was ultimately free to

disbelieve Appellant’s testimony in that regard, the jury was relieved of the

responsibly of making that credibility determination due to the trial court’s

constitutional error in issuing a jury instruction on the Contraband Offense

without a mens rea element.

Although Appellant directs much of his argument toward the

constitutionality of the standard jury instructions for the Contraband Offense,

which does not contain a mens rea element, he does so premised on the trial

court’s strict-liability interpretation of Section 5123(a). However, we ascertain

no defect in the standard Section 5123(a) jury instruction. The constitutional

defect in this case stemmed not from the court’s reading the standard

instruction for that offense to the jury but, instead, from the trial court’s

omission of an accompanying instruction relaying the default mens rea from

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Section 302(c) and/or from the trial court’s failure to issue an

ignorance/mistake jury instruction given the nature of Appellant’s testimony.

Because of the trial court’s error in issuing a jury instruction for Section

5123(a) without also defining the default mens rea provided by Section

302(c), Appellant is entitled to a new trial for that offense. See

Commonwealth v. Woosnam, 819 A.2d 1198, 1206–07 (Pa. Super. 2003)

(granting a new trial due to trial court error in effectively making leaving the

scene of an accident involving death or personal injury “a strict liability

crime[,]” where the court erroneously “refused to instruct the jury that the

Commonwealth had any burden of proving any amount of knowledge on

Appellant’s part that she was involved in an accident involving death or

injury[,]” which “removed from the jury’s consideration the only defense

presented by [the a]ppellant and virtually instructed the jury to find in favor

of the Commonwealth”).

II.

Next, Appellant claims that the trial court abused its discretion when it

denied his post-sentence motion for judgment of acquittal on the Possession

Offense, contending that relief was warranted because Appellant

“uncontrovertibly testified that he did not knowingly possess any items of

contraband found within [the] prison[-]issued wheelchair[,]” Appellant’s Brief

at 38, and because it was “uncontested that the wheelchair provided to

Appellant by Butler County Prison staff was not searched prior to Appellant

receiving it[,]” id. at 45. Appellant argues that the wheelchair in question

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could have been accessed by any number of inmates over an indeterminate

amount of time, and that there was “no chain of custody evidence presented

to the jury which would give it sufficient weight to permit and support

Appellant’s conviction.” Id.

Appellant’s claim asserts a challenge to the weight of the evidence

supporting his conviction for the Possession Offense, which he preserved for

our review in his post-sentence motion. See Post-Sentence Motion, 10/27/21,

at 4-5 ¶ 28-36 (unnumbered pages).

The weight given to trial evidence is a choice for the factfinder. If
the factfinder returns a guilty verdict, and if a criminal defendant
then files a motion for a new trial on the basis that the verdict was
against the weight of the evidence, a trial court is not to grant
relief unless the verdict is so contrary to the evidence as to shock
one’s sense of justice.

When a trial court denies a weight-of-the-evidence motion, and
when an appellant then appeals that ruling to this Court, our
review is limited. It is important to understand we do not reach
the underlying question of whether the verdict was, in fact,
against the weight of the evidence. We do not decide how we
would have ruled on the motion and then simply replace our own
judgment for that of the trial court. Instead, this Court determines
whether the trial court abused its discretion in reaching whatever
decision it made on the motion, whether or not that decision is the
one we might have made in the first instance.

Moreover, when evaluating a trial court’s ruling, we keep in mind
that an abuse of discretion is not merely an error in judgment.
Rather, it involves bias, partiality, prejudice, ill-will, manifest
unreasonableness or a misapplication of the law. By contrast, a
proper exercise of discretion conforms to the law and is based on
the facts of record.

Commonwealth v. West, 937 A.2d 516, 521 (Pa. Super. 2007) (citations

omitted).

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J-S25014-22

Here, the trial court determined that the verdict was not against the

weight of the evidence, noting that the jury “chose to believe the testimony

of the Commonwealth’s witnesses and reached the conclusion that [Appellant]

did possess or have under his control the” Suboxone sublingual film found in

the wheelchair. TCO at 3. Furthermore, the Commonwealth argues:

[Appellant]’s claim here must fail because the jury, in convicting
him of [the] Possession [Offense], incontrovertibly did not believe
[his] testimony that he did not possess the Suboxone [s]trips.
The jury, as finder of fact, while making determinations of witness
credibility and the weight of the evidence, is free to believe all,
part, or none of the evidence. Commonwealth v. Cousar, 928
A.2d 1025, 1032 (Pa. 2007). As discussed, supra, regarding the
sufficiency of the evidence for [the] Possession [Offense],[13] the
____________________________________________

13 The Commonwealth maintains that the evidence supporting Appellant’s
conviction for the Possession Offense was not limited to his constructive
possession of the wheelchair. The Commonwealth’s witnesses testified that
Appellant was visibly agitated when he discovered his cell was being searched.
See Commonwealth’s Brief at 18 (citing N.T. Trial at 43-44). This led the
officers to conduct a more thorough search because Appellant’s behavior
raised red flags. Id. The Commonwealth also points to Appellant’s own
testimony “that he was going through withdrawal[] when he first entered the
prison (see [N.T. Trial at 106]), making it highly likely he would take steps,
by any means necessary, to access Suboxone in order to curb his sickness.”
Id. at 19-20. Additionally,

[i]n closing, the Commonwealth submitted to the jury that
[Appellant] likely smuggled the Suboxone strips into the
prison in his rectum (see [N.T. Trial at] 127), a theory
supported by the circumstantial evidence. Both Officers
McClelland and Wingrove testified that they observed a
distinct fecal matter smell, both on the wheelchair and on
the baggie containing the Suboxone strips. [Id. at 45-46].
In addition, Detective John Johnson of the Butler County
District Attorney’s office, the affiant in this case, testified
that a blue piece of plastic (Commonwealth’s Ex. “6”)
(Footnote Continued Next Page)

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J-S25014-22

Commonwealth did indeed present circumstantial evidence at trial
that credibly linked [Appellant] to possession of the Suboxone
strips. Even though [Appellant] surmises the evidence
surrounding the wheelchair weighs in his favor, the dissonance
between his testimony and the Commonwealth’s evidence does
not entitle him to relief. A new trial should not be granted because
of a mere conflict in testimony or because the judge would have
arrived a different conclusion. Commonwealth v. Hunter, 768
A.2d 1136, 1143 (Pa. Super. 2001). As a result, the trial court
did not abuse its discretion in denying the motion for new trial.

Commonwealth’s Brief at 22.

We agree with the Commonwealth’s analysis, and we ascertain no abuse

of discretion by the trial court in denying Appellant’s weight-of-the-evidence

claim.

III.

In his third and final claim, Appellant argues that the Commonwealth

“presented insufficient evidence to sustain the convictions against Appellant.”

Appellant’s Brief at 49. Appellant’s argument in support of this claim

comprises only half of a page, in which he incorporates his arguments

regarding his first two claims. Id.

The trial court deemed this issue waived, as Appellant “fail[ed] to

‘specify how the evidence failed to establish which element or elements of the

____________________________________________

recovered during the wheelchair search resembled the
finger tip of a plastic glove. [Id. at 54]. Detective Johnson
explained that this type of evidence is common in
contraband cases, where the accused will place contraband
in the tip of a plastic glove, tie it off, and insert it into a
bodily cavity or swallow it, thereby avoiding detection of the
contraband during a cursory strip search. Id.

Commonwealth’s Brief at 20.

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two offenses for which he was convicted’” in his Rule 1925(b) statement. TCO

at 4 (quoting Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super.

2008)). Indeed, in the Rule 1925(b) statement, Appellant stated the

question: “Whether the Commonwealth presented sufficient evidence to

sustain the convictions against [Appellant]?” Pa.R.A.P. 1925(b) Statement,

1/27/22, at 1 ¶ 3. The trial court did not address the claim on the merits due

to this deficiency. See TCO at 4. We note that Appellant does not address

the trial court’s finding of waiver in his brief to this Court. Furthermore,

Appellant was instructed in the trial court’s order directing him to file a Rule

1925(b) statement that: “Any issue not properly included in the Statement …

shall be deemed waived[,]” Order, 1/19/22, at 1, echoing the text of Rule

1925, which provides that: “Issues not included in the Statement and/or not

raised in accordance with the provisions of this paragraph (b)(4) are

waived[,]” Pa.R.A.P. 1925(a)(4)(vii).

It is well-established that any issue not raised in a Rule 1925(b)
statement will be deemed waived for appellate review. See
Commonwealth v. Lord, … 719 A.2d 306, 309 ([Pa.] 1998).
Further, an appellant’s concise statement must identify the errors
with sufficient specificity for the trial court to identify and address
the issues the appellant wishes to raise on appeal. See Pa.R.A.P.
1925(b)(4)(ii) (requiring a Rule 1925(b) statement to “concisely
identify each ruling or error that the appellant intends to challenge
with sufficient detail to identify all pertinent issues for the judge”).
This Court explained in Riley v. Foley, 783 A.2d 807, 813 (Pa.
Super. 2001), that Pa.R.A.P. 1925 is a crucial component of the
appellate process because it allows the trial court to identify and
focus on those issues the parties plan to raise on appeal.

A Rule 1925(b) concise statement that is too vague can result in
waiver of issues on appeal. See Commonwealth v. Dowling,
778 A.2d 683, 686-[]87 (Pa. Super. 2001) ([stating that] “a

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concise statement which is too vague to allow the court to identify
the issues raised on appeal is the functional equivalent of no
concise statement at all”).

If [an a]ppellant wants to preserve a claim that the evidence
was insufficient, then the 1925(b) statement needs to
specify the element or elements upon which the evidence
was insufficient. This Court can then analyze the element
or elements on appeal. [Where a] 1925(b) statement []
does not specify the allegedly unproven elements[,] … the
sufficiency issue is waived [on appeal].

Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super. 2015)
(citation omitted).

Commonwealth v. Bonnett, 239 A.3d 1096, 1106 (Pa. Super. 2020), appeal

denied, 250 A.3d 468 (Pa. 2021).

We agree with the trial court that Appellant’s third claim in his Rule

1925(b) statement was too vague and, therefore, waived. See id. (holding

that the appellant waived his sufficiency claim due to lack of specificity in his

Rule 1925(b) statement where he had only provided “a blanket statement

wherein he declares the evidence was insufficient to convict him of all

charges”).

Conclusion

In sum, we affirm Appellant’s judgment of sentence for the Possession

Offense, having deemed his second claim meritless, and his third claim

waived. However, we vacate Appellant’s judgment of sentence for the

Contraband Offense, and remand for a new trial in accordance with this

Opinion.

Judgment of sentenced affirmed in part and vacated in part. Case

remanded for a new trial. Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/20/2022

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