Com. v. Cornelius, A. , 180 A.3d 1256 ( 2018 )

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2018 PA Super 49COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANDREW ALLEN CORNELIUS, :
:
Appellant : No. 1011 WDA 2017
Appeal from the Judgment of Sentence June 23, 2017
in the Court of Common Pleas of Warren County
Criminal Division, at No(s): CP-62-CR-0000330-2016
BEFORE: BENDER, P.J.E., STEVENS, P.J.E.,* and STRASSBURGER, J.**
OPINION BY STRASSBURGER, J.: FILED MARCH 7, 2018
Andrew Allen Cornelius (Appellant) appeals from the judgment of
sentence entered June 23, 2017, after he was convicted of possession of a
controlled substance by an inmate and simple possession. We affirm.
On August 2, 2016, Appellant was arrested for a parole violation at his
apartment. Appellant was wearing shorts with a baggie of methamphetamine
sewn into the material. Appellant was searched incident to arrest but no
contraband was found. Officer Leo Hanlin advised Appellant to turn over any
contraband he may have missed in the search. He informed Appellant that
any contraband surrendered at that time would be treated as a parole
violation, but if contraband was discovered on Appellant once he arrived at
the jail, he would be subject to new charges. N.T., 5/8/2017, at 34-37, 56.
* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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Appellant was transported to the county jail. Upon arrival, Officer Hanlin
again gave Appellant the opportunity to turn over any contraband before
entering the jail; Appellant did not turn over the hidden methamphetamine.
Id. at 38. Appellant was surrendered to the custody of the Warren County
Jail and he proceeded through the booking process. As part of the intake
procedure, Appellant was required to remove his clothing, including his shorts.
His clothing was searched without incident and stored. Id. at 39-40, 51-53,
61-62.
Later, Appellant told fellow inmate, Blaine Beatty, that there was
methamphetamine sewn inside the shorts he had worn into the jail, and he
wanted to access them. On August 15, 2016, Beatty notified a corrections
officer; the officer retrieved Appellant’s shorts and located the baggie of
methamphetamine sewn inside the material of the shorts. Id. at 47, 48, 54-
56, 75.
Following a jury trial, Appellant was found guilty as noted above. On
June 23, 2017, Appellant was sentenced to an aggregate term of incarceration
of 14 to 36 months. Appellant did not file a post-sentence motion.
Appellant timely filed a notice of appeal on June 28, 2017. Both
Appellant and the trial court have complied with Pa.R.A.P. 1925. Appellant
presents the following questions for our review.
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1. Does the definition of “prisoner” or “inmate” under 18 Pa.[C.S.
§ 5123(a.2)] include an individual who is being brought to a
penal institution for a probation or parole violation? [1]
2. Was there insufficient evidence to convict [Appellant] of
possession of a controlled substance by an inmate in violation
of 18 Pa.[C.S. § 5123(a.2)]?
3. Is 18 Pa.[C.S. § 5123(a.2)] unconstitutionally vague or
overbroad for its lack of a definition of a prisoner?
4. Did the trial court err in not granting a mistrial when the [trial]
court read to the jury that the charge of 18 Pa.[C.S.
§ 5123(a.2)] was a felony of the 2nd degree?
Appellant’s Brief at 6 (reordered, unnecessary capitalization and suggested
answers omitted).
Because Appellant’s arguments for his first two claims are intertwined,
we consider them together. We begin with our standards of review.
When, as here, the appellant raises a question
of statutory construction, our standard of review is de novo, and
our scope of review is plenary.
In matters involving statutory interpretation,
the Statutory Construction Act directs courts to
ascertain and effectuate the intent of the General
Assembly. 1 Pa.C.S. § 1921(a). A statute’s plain
language generally provides the best indication of
legislative intent. In construing the language,
however, and giving it effect, we should
not interpret statutory words in isolation, but must
read them with reference to the context in which they
appear.
1 When referencing possession of a controlled substance by an inmate within
his brief, Appellant cites to 18 Pa.C.S. § 5123(a)(2). This subsection does not
exist. We consider Appellant’s claims as a challenge to 18 Pa.C.S § 5123(a.2),
the subsection under which he was charged and convicted.
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We must construe words and phrases in statutes according
to rules of grammar and according to their common and approved
usage[.] 1 Pa.C.S. § 1903(a). One way to ascertain the plain
meaning and ordinary usage of terms is by reference to a
dictionary definition. We must also take into account what the
statute does not prescribe. “[I]t is not for the courts to add,
by interpretation, to a statute, a requirement which the legislature
did not see fit to include. Consequently, [a]s a matter
of statutory interpretation, although one is admonished to listen
attentively to what a statute says; one must also listen attentively
to what it does not say.” Commonwealth v. Johnson, 611 Pa.
381, 26 A.3d 1078, 1090 (2011) (internal quotations and citations
omitted).
Commonwealth v. Ford, 175 A.3d 985, 991-92 (Pa. Super. 2017) (some
citations and quotation marks omitted).
Our standard of review in sufficiency of the evidence claims is to
determine
whether, viewing all the evidence admitted at trial in the light
most favorable to the [Commonwealth as the] verdict winner,
there is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying [the
above] test, we may not weigh the evidence and substitute our
judgment for the fact-finder. In addition, we note that the facts
and circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence.
Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015) (citation
omitted).
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Appellant posits that “[t]here is no dispute that Appellant was in fact
confined in the Warren County Jail, but the issue is at what point does an
individual being arrested for a parole violation actually become ‘confined.’”
Appellant’s Brief at 15. He contends that “[w]hile an individual is arguably in
custody at the time [he is] placed under arrest, [he does] not actually become
an ‘inmate’ or ‘prisoner’ until [he is] actually physically confined within the
institution.” Id. at 15-16.
Appellant similarly concedes that he was in possession of a controlled
substance, see id. at 11-12, but curtails this concession when he argues that
“[t]he only time Appellant had actual control of the substance would have
been while he was still at his home, prior to being searched and handcuffed
by officers. Once handcuffed, it became impossible for Appellant to gain
access to his shorts and any contraband.” Id. at 14. Thus, Appellant argues
that he “did not meet the definition of ‘inmate’ or ‘prisoner’ at the time that
he possessed the methamphetamine[,]” i.e., he was not an inmate or prisoner
while he was wearing the shorts in his home. Id. at 12-17.
The trial court offered the following analysis regarding Appellant’s
argument.
When prison staff first took custody of [Appellant], he was
indisputably in possession of the methamphetamine concealed in
his shorts and was thus guilty of [s]imple [p]ossession at that
time.1 At this time, [Appellant] had been committed to the jail and
thus the jury could reasonably find that he was an inmate under
the definition [provided in 18 Pa.C.S. § 5123(e)].
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______
1 [Appellant]’s subsequent statements to his fellow inmate
support the inference that [Appellant] possessed the
methamphetamine knowingly.
Trial Court Opinion, 8/29/2017, at 5.
“A prisoner or inmate commits a felony of the second degree if he
unlawfully has in his possession or under his control any controlled substance
in violation of [35 P.S. § 780-113(a)(16)].” 18 Pa.C.S. § 5123(a.2). This
Court has held that the intent of the legislature in subsection 5123(a.2) “is
the prevention of inmates obtaining any controlled substance in any amount
whatsoever; in other words, the contraband statute seeks absolute abstinence
by inmates[.]” Commonwealth v. Gerald, 47 A.3d 858, 862 (Pa. Super.
2012). “Possession can be proven by showing actual possession, i.e., a
controlled substance found on the [defendant’s] person[.]” Commonwealth
v. Macolino, 469 A.2d 132, 134 (Pa. 1983). An inmate is defined in the
statute as an “offender who is committed to, under sentence to or confined in
a penal or correctional institution.” 18 Pa.C.S. § 5123(e). Prisoner is not
defined within the statute.
We conclude that the language of the statute is clear and unambiguous
when applied to the facts of this case. Under subsection 5123(e), there are
three ways an individual offender may become an inmate under the statute:
(1) when he is committed to a penal or correctional institution; (2) when he
is under sentence to a penal or correctional institution; or (3) when he is
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confined in a penal or correctional institution. 18 Pa.C.S. § 5123(e). It is
undisputed that Appellant was arrested for a parole violation, transported, and
surrendered to the custody of the staff at the Warren County Jail. Once his
intake processing began, Appellant was committed to the custody of the
Warren County Jail. Accordingly, that is when he first became an inmate of
the jail as defined under subsection 5123(e). At that time, Appellant was still
wearing his methamphetamine-lined shorts, and thus had a controlled
substance on his person. Given the evidence presented, the jury could
reasonably conclude that Appellant was in actual possession of a controlled
substance while an inmate during intake. Accordingly, we hold the evidence
was sufficient to sustain Appellant’s conviction for possession of a controlled
substance by an inmate.
Because we affirm on the basis that Appellant fit the statutory definition
of inmate during intake, we need not consider whether he was also a prisoner
under subsection 5123(a.2). Accordingly, any review of Appellant’s third
claim, that the statute is unconstitutionally vague due to its lack of a definition
of prisoner, is moot, and we will not address it. See Commonwealth v.
T.J.W., 114 A.3d 1098, 1102 (Pa. Super. 2015) (“This Court does not render
advisory opinions.”).
Appellant alleges in his final claim that the trial court erred in not
granting a mistrial. We note the following standard which governs our review
of such claims:
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In criminal trials, declaration of a mistrial serves to eliminate
the negative effect wrought upon a defendant when
prejudicial elements are injected into the case or otherwise
discovered at trial. By nullifying the tainted process of the
former trial and allowing a new trial to convene, declaration
of a mistrial serves not only the defendant’s interest but,
equally important, the public’s interest in fair trials designed
to end in just judgments. Accordingly, the trial court is
vested with discretion to grant a mistrial whenever the
alleged prejudicial event may reasonably be said to deprive
the defendant of a fair and impartial trial. In making its
determination, the court must discern whether misconduct
or prejudicial error actually occurred, and if so, … assess the
degree of any resulting prejudice. Our review of the
resulting order is constrained to determining whether the
court abused its discretion. Judicial discretion requires
action in conformity with [the] law on facts and
circumstances before the trial court after hearing and
consideration. Consequently, the court abuses its discretion
if, in resolving the issue for decision, it misapplies the law
or exercises its discretion in a manner lacking reason.
The remedy of a mistrial is an extreme remedy required only when
an incident is of such a nature that its unavoidable effect is to
deprive the appellant of a fair and impartial tribunal.
Commonwealth v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009) (internal
quotation marks and citation omitted).
Appellant argues that the trial court erred in not granting a mistrial after
it informed the jury of the grading of one of Appellant’s charges. Appellant’s
Brief at 6 (unnecessary capitalization omitted). Appellant contends that the
trial court’s failure to grant a mistrial “prejudiced [Appellant] and deprived
[him] of a fair trial[.]” Id. at 22.
During the trial court’s opening instructions to the jury, the court stated
that Appellant was charged with “possession of a controlled substance,
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contraband inmate[,] … a felony of the second degree[.]” N.T., 5/8/2017, at
9. Appellant concedes that he did not object or move for a mistrial at the time
of the statement. After the Commonwealth brought it to the court’s attention
following the close of evidence, Appellant moved for a mistrial. N.T.,
5/8/2017, at 87-89. Appellant conceded that he was unsure what the law was
regarding mistrials for this sort of disclosure,2 and the trial court denied the
motion. Id. at 89-90.
Based on the foregoing, we conclude that Appellant’s motion was not
timely made. “When an event prejudicial to the defendant occurs during trial
only the defendant may move for a mistrial; the motion shall be made when
the event is disclosed.” Pa.R.Crim.P. 605(B) (emphasis added). Because
2 Appellant’s counsel provided the following argument in support of a mistrial.
I don’t recall hearing it, your Honor. I don’t know what the record
reflects. Even if that was the case. And, it’s been awhile since I
looked at the case law. I don’t state, I don’t think stating the
grading is the issue as long as a punishment or what the possible
range of sentence.
***
Your Honor, I would make a motion for mistrial at this point, based
on the fact that I had to look at the case law, whether that rises
to the level of the jury knowing the possible sentence or
punishment in this case, that to cause prejudice on my client I
would make that argument here. But, I am not familiar with the
case law on that.
Id. at 88-89.
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Appellant failed to object when the disclosure occurred, Appellant’s claim
regarding the trial court’s denial of his motion for a mistrial is waived. See
Commonwealth v. McAndrews, 430 A.2d 1165, 1167 (Pa. 1981)
(“Appellant failed to make a timely request for a mistrial, and this claim,
accordingly, has been waived.”). Even if timely made, the trial court did not
err in denying the motion because Appellant failed to establish prejudice. See
Trial Court Opinion, 8/29/2017, at 7-8.
Appellant alternatively argues that the trial court should have granted a
mistrial sua sponte.
[W]hile defense counsel did not move for mistrial at the instant
moment that the trial court informed the jury that Appellant was
charged with a second degree felony, the court still has the
discretion to declare a mistrial if the court feels that [its] mistake
has caused prejudice to the defendant. Here, while reading the
grading does not clearly spell out the possible punishment that
the defendant is facing, it still gives the jury an opportunity to look
up the possible sentencing ranges based on that grading. If a
member of the jury were to have known before the presentment
of evidence that a second degree felony carries a specific
sentencing range, that could have the same effect as if the court
had actually expressly read the sentencing range. Because being
informed of the grading of a charge can effectively be the same
as informed [sic] the jury of the possible penalties and sentencing
range of the charges, Appellant was prejudiced and deprived of a
fair trial to the point that manifest necessity required the trial
court to declare a mistrial, even if the trial court finds that
Appellant waived his right to move for a mistrial by not presenting
a motion for mistrial at the time of the disclosure.
Appellant’s Brief at 22.
“It is within a trial judge’s discretion to declare a mistrial sua
sponte upon the showing of manifest necessity, and absent an abuse of that
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discretion, we will not disturb his or her decision.” Commonwealth v. Kelly,
797 A.2d 925, 936 (Pa. Super. 2002). “[A] mistrial should be declared sua
sponte only in very extraordinary and striking circumstances.” Id. at 939(citations and quotation marks omitted). Appellant has failed to develop any
meaningful argument regarding the alleged manifest necessity present.
Conjecture about the possibility for jurors to conduct independent legal
research into what penalties attach to a specific grading does not amount to
manifest necessity. Thus the trial court did not err in not declaring a mistrial.
Accordingly, Appellant is not entitled to relief from this Court.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2018
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