Com. v. Lehman, R.

J-A29019-21
2022 PA Super 112COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RONNIE LEHMAN :
:
Appellant : No. 601 WDA 2021
Appeal from the PCRA Order Entered April 14, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0003380-2018
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
DISSENTING OPINION BY BOWES, J.: FILED: June 23, 2022
This Court is tasked in the instant appeal with ascertaining and
effectuating our General Assembly’s intent in enacting the provisions of 18
Pa.C.S. § 5123 applicable in 2018 when Appellant possessed controlled
substances at a correctional institution. Instead, the Majority largely ignores
the statute and the rules of statutory construction and opts to reach a decision
based upon “the nature of parole,” informed by irrelevant provisions of the
Prisons and Parole Code, some of which were materially different or
nonexistent at the time in question, and a purported agreement that is dehors
the record. In my view, proper application of the rules of statutory
construction to the language of § 5123 affirms the PCRA court’s conclusion
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A29019-21
that Appellant was an “inmate” at Renewal at the time he illegally possessed
heroin and fentanyl there. Accordingly, I respectfully dissent.
The criminal statute at issue, section 5123, provides in significant part
as follows:
(a) Controlled substance contraband to confined persons
prohibited.--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 . . . 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 . . . .
....
(a.2) Possession of controlled substance contraband by
inmate prohibited.--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 section
13(a)(16) of The Controlled Substance, Drug, Device and
Cosmetic Act. For purposes of this subsection, no amount shall
be deemed de minimis.
(b) Money to inmates prohibited.--A person commits a
misdemeanor of the third degree if he gives or furnishes money
to any inmate confined in a State or county correctional
institution, provided notice of this prohibition is adequately posted
at the institution. . . .
(c) Contraband other than controlled substance.--A person
commits a misdemeanor of the first degree if he sells, gives 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
-2-
J-A29019-21
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 kind of spirituous or fermented liquor,
medicine or poison (except the ordinary hospital supply of the
prison or mental hospital) without a written permit signed by the
physician of such institution. . . .
(c.1) Telecommunication devices to inmates prohibited.--A
person commits a misdemeanor of the first degree if, without the
written permission of superintendent, warden or otherwise
authorized individual in charge of a correctional institution, prison,
jail, detention facility or mental hospital, he sells, gives or
furnishes to any inmate in a correctional institution, prison, jail,
detention facility or mental hospital, or any building appurtenant
thereto, or puts in any place where it may be obtained by an
inmate of a correctional institution, prison, jail, detention facility
or mental hospital, any telecommunication device.
(c.2) Possession of telecommunication devices by inmates
prohibited.--An inmate in a correctional institution, prison, jail,
detention facility or mental hospital, or any building appurtenant
thereto, commits a misdemeanor of the first degree if he has in
his possession any telecommunication device without the written
permission of the superintendent, warden or otherwise authorized
individual in charge of a correctional institution, prison, jail,
detention facility or mental hospital.
....
(e) Definitions.--As used in this section, the following words and
phrases shall have the meanings given to them in this subsection:
“Inmate.” A male or female offender who is committed to, under
sentence to or confined in a penal or correctional institution.
18 Pa.C.S. § 5123.
Appellant was convicted for violating subsection (a.2) of the statute
prohibiting “inmates” and “prisoners” from possessing or controlling any
amount of a controlled substance. The term “prisoner” is not defined in the
statute, but I agree with the Majority’s assessment that said term is not
-3-
J-A29019-21
implicated in this case. Consequently, the issue is whether Appellant was an
inmate: “A male or female offender who [was] committed to, under sentence
to or confined in a penal or correctional institution” when he possessed heroin
and fentanyl at Renewal. 18 Pa.C.S. § 5123(e).
Renewal is a “community corrections center.” See Price v.
Pennsylvania Bd. of Prob. & Parole, 863 A.2d 173, 174 (Pa.Cmwlth. 2004).
Our legislature has defined a “community corrections center” as “[a]
residential program that is supervised and operated by the department in
accordance with” Chapter 50 of the Prisons and Parole Code. 61 Pa.C.S.
§ 5001. That chapter is contained in Part III of the Prisons and Parole Code,
which is entitled “Inmate Confinement,” among chapters governing inmate
labor, visitation, and Pennsylvania’s execution procedure and method. As
such, the Majority aptly concludes that “Renewal indisputably qualifies as a
correctional institution.” Majority Opinion at 6.
Therefore, the only question that remains to be answered is whether
Appellant was “committed to, under sentence to or confined in” Renewal when
he possessed the contraband. The following well-established legal principles
govern this determination. “The object of all interpretation and construction
of statutes is to ascertain and effectuate the intention of the General
Assembly.” 1 Pa.C.S. § 1921(a). “The plain language of the statute is the
best indicator of the legislature’s intent. To ascertain the plain meaning, we
consider the operative statutory language in context and give words and
-4-
J-A29019-21
phrases their common and approved usage.” Commonwealth v.
Chesapeake Energy Corp., 247 A.3d 934, 942 (Pa. 2021). While penal
statutes such as § 5123 must be strictly construed, “this principle does not
require that our Court give the words of a statute their narrowest possible
meaning, nor does it override the general principle that the words of a statute
must be construed according to their common and approved usage.”
Commonwealth v. Hart, 28 A.3d 898, 908 (Pa. 2011) (cleaned up).
This Court must “interpret statutory language not in isolation, but with
reference to the context in which it appears.” Commonwealth v. Kingston,
143 A.3d 917, 922 (Pa. 2016). This context includes the titles of headings,
parts, and sections which our legislature has used in organizing the statute.
See 1 Pa.C.S. § 1924. (“The title and preamble of a statute may be
considered in the construction thereof. . . . The headings prefixed to titles,
parts, articles, chapters, sections and other divisions of a statute shall not be
considered to control but may be used to aid in the construction thereof.”).
We must give effect and ascribe meaning to each word and provision
chosen by our legislature, assuming none is mere surplusage. See, e.g.,
Commonwealth v. McClelland, 233 A.3d 717, 734 (Pa. 2020) (“Some
meaning must be ascribed to every word in a statute . . . and there is a
presumption that disfavors interpreting language as mere surplusage.”); 1
Pa.C.S. § 1921(a) (“Every statute shall be construed, if possible, to give effect
to all its provisions.”). Finally, we bear in mind our legislature’s instruction
-5-
J-A29019-21
that the provisions of the Crimes Code must “be construed according to the
fair import of their terms but when the language is susceptible of differing
constructions it shall be interpreted to further the general purposes stated in
[Title 18] and the special purposes of the particular provision involved.” 18
Pa.C.S. § 105.
Our Supreme Court has observed that the fair import of § 5123 “is that
there are certain places where it is impermissible to bring certain enumerated
substances.” Commonwealth v. Williams, 579 A.2d 869, 871 (Pa. 1990).
Namely, the places are “1.) any prison; 2.) any mental hospital; 3.) any
building appurtenant to a prison or mental hospital; and 4.) land granted to
or owned or leased by the Commonwealth or county for the use and benefit
of prisoners or inmates.” Id.During the time at issue in the case sub judice, community correction
centers housed not only parolees in good standing, but also offenders serving
state intermediate punishment, offenders who had been granted clemency,
and parolees detained or recommitted for technical violations. See 61 Pa.C.S.
§ 5003 (effective January 2, 2013 to June 29, 2021).1 Indeed, the Majority
recognizes that parolees may reside in community correction centers
____________________________________________
1 Currently, only parolees in good standing or who are detained or awaiting
recommitment for technical violations are authorized to be housed in
community corrections facilities. See 61 Pa.C.S. § 5003(a) (effective June
20, 2021).
-6-
J-A29019-21
alongside prerelease inmates in need of drug treatment who are undeniably
in official detention at the facility. See Majority Opinion at 7.
Thus, it is utterly reasonable to infer that in 2018, correctional centers
such as Renewal were among the “certain places” for which our legislature
intended to impose special contraband rules. Nonetheless, Appellant argues,
and the Majority holds, that while the prerelease inmates at the Renewal
corrections facility may have been subject to prosecution under § 5123(a.2)
for possessing controlled substances there, Appellant was not because he was
considered to be “at liberty on parole” while he resided among those inmates.
Appellant contends that he was “presumed to be at ‘liberty on parole’”
while he was a resident at Renewal unless the presumption was rebutted by
evidence that the Renewal was so restrictive that it was “a prison equivalent.”
Id. at 11 (cleaned up) (quoting Cox v. Com., Bd. of Prob. & Parole, 493
A.2d 680, 681 (Pa. 1985)). Appellant asserts that the Commonwealth Court
has held, in the context of determining whether parolees are entitled to credit
for time spent residing in halfway houses, that Renewal is “physically
constructed in ways that this Court has held, on numerous occasions, are
unlike prisons.” Id. (quoting Harden v. Pennsylvania Bd. of Prob. &
Parole, 980 A.2d 691, 699 (Pa.Cmwlth. 2009) (noting that “[f]acilities are
not prison-like if they lack fences or have fences with gates that open from
the inside; have doors and windows locked from the outside, not the inside,
to prevent entry not exit; lack guards stationed to prevent residents from
-7-
J-A29019-21
leaving; and do not attempt to use physical force by staff members to stop an
inpatient from leaving”).
Appellant further observes that our sister Court has likewise
distinguished between parolees on supervision and pre-release inmates on
leave for treatment residing at the same place when determining whether the
individual can receive time credit or be guilty of the crime of escape from the
facility. Id. at 11-12 (citing Meehan v. Pennsylvania Bd. of Prob. &
Parole, 808 A.2d 313, 317 (Pa.Cmwlth. 2002)). Appellant suggests that,
because the Commonwealth failed to proffer evidence that would have
established that he was entitled to credit for his time served at Renewal and
could have been charged with escape for absconding therefrom, the evidence
was insufficient to prove that he was an inmate or prisoner at Renewal for
purposes of § 5123(a.2).
In my view, the Commonwealth properly observes that whether
Appellant was “at liberty on parole” for purposes of time credit is irrelevant to
the issue of his status as an inmate under § 5123(a.2). See Commonwealth’s
brief at 12. I agree with the Commonwealth that, by the plain language of
the statute, Appellant, as a resident assigned to a corrections facility, was an
inmate there for purposes of the contraband statute. 2 Id. at 7, 15-16.
____________________________________________
2The Majority repeatedly cites 61 Pa.C.S. § 6138(2.3) to demonstrate that
Appellant was “at liberty on parole” rather than an “inmate” while he was at
Renewal in 2018. See Majority Opinion at 1 n.1., 7. However, that statutory
-8-
J-A29019-21
Whether the conditions Appellant personally experienced at Renewal
were sufficiently prison-like to entitle him to credit for the time he served there
is of no moment, as the purposes for the contraband statute and those
governing time credit are distinct. Regarding the latter, the General Assembly
has provided:
Credit against the maximum term and any minimum term shall be
given to the defendant for all time spent in custody as a result of
the criminal charge for which a prison sentence is imposed or as
a result of the conduct on which such a charge is based. Credit
shall include credit for time spent in custody prior to trial, during
trial, pending sentence, and pending the resolution of an appeal.
42 Pa.C.S. § 9760. “Pennsylvania appellate courts consistently have
interpreted section 9760's reference to ‘custody’ as confinement in prison or
another institution.” Commonwealth. v. Martz, 42 A.3d 1142, 1145
(Pa.Super. 2012) (quoting Commonwealth v. Maxwell, 932 A.2d 941, 944
(Pa.Super.2007) (emphasis added)). Section 5123 is not so limited. Our
legislature expressly provided that an inmate for purposes of § 5123 is not
____________________________________________
provision did not exist in 2018. Subsection (2.3) was added to § 6138, a
statute governing when the Board may revoke parole for violation of the
attendant terms, in June 2021. The only references to “at liberty on parole”
in the version of § 6138 applicable in 2018 were in subsections (2) and (2.1),
which provided that a parole violator recommitted to serve the remainder of
his sentence was entitled to no credit for time at liberty on parole, but that
the Board could award such time credit at its discretion. See 61 Pa.C.S.
§ 6138 (effective January 2, 2013 to December 17, 2019). In any event, I
fail to see what pertinence a statute governing when and if parolees are
entitled to time credit has to a criminal statute designed to impose zero
tolerance on possession of drugs at correctional institutions.
-9-
J-A29019-21
only a person “confined in” a penal institution, but also those “committed to”
or “under sentence to” any correctional institution. 18 Pa.C.S. § 5123(e).
This Court must presume that “committed to” and “under sentence to” each
has a meaning distinct from “confined in.” 3 Hence, even if residents at
Renewal were not sufficiently “confined” to be considered “in custody” such
that they were entitled to the same credit against their maximum sentences
as those who are not at liberty on parole, that does not ipso facto mean they
were not inmates for the purposes of § 5123. The question remains whether
Appellant met the definition of inmate supplied by our legislature in that he
was “committed to” Renewal when he possessed heroin and fentanyl there.
The foundation of the Majority’s determination that he did not is an
unduly narrow definition of the term “commit” and the terms of a parole
agreement that is to be found nowhere in the certified record. See Majority
Opinion at 7-10. Specifically, the Majority raises and employs an argument
never proffered by Appellant that is based upon Pennsylvania Code provisions
generally applicable to parole agreements and an inmate’s need to consent to
its terms. The Majority, without any authority for support, indicates that
parolees “may only reside at Renewal or any community corrections center
pursuant to a parole agreement[.]” Id. at 9. It observes that Appellant had
____________________________________________
3 Similarly, this Court must presume that our legislature intended “prisoner,”
a term not defined in the statute, to have a meaning distinct from “inmate.”
However, because I conclude that Appellant fell within the express definition
of “inmate,” I need not explore the separate meaning of “prisoner.”
- 10 -
J-A29019-21
the option of rejecting any such agreement, which we must assume that he
signed given its absence from the certified record, and electing to stay in the
state correctional institution instead. Id. at 10.
The Majority further cities Black’s Law Dictionary definition of “commit,”
namely: “To send (a person) to prison or to a mental health facility, esp. by
court order.” Id. at 7 n.5 (quoting COMMIT, Black’s Law Dictionary (11th ed.
2019)). It then leaps to the conclusion that a person cannot be “committed
to” a place if he has consented to go there. Id. at 7 n.5. Therefore, the
Majority opines, the term “committed to” in § 5123(e) “necessarily refers to a
class of offenders held or incarcerated in correctional facilities against their
will.” Id. at 7. Since Appellant was not at Renewal against his will, the
Majority rules that he cannot be considered an inmate for purposes of
§ 5123(a.2).
I first observe that we have no idea what conditions or constraints
governed Appellant’s residency at Renewal. Not only did he fail to make his
agreement part of the record in this case, but he does not even allude to any
of the terms in his brief. Appellant’s arguments before this Court have no
basis in parole agreements, generally speaking or in his case in particular. I
reject the Majority’s unwarranted advocacy on behalf of Appellant and its
consideration of fact-based matters not included in the certified record. See,
e.g., Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa.Super. 2017)
(“This Court will not act as counsel and will not develop arguments on behalf
- 11 -
J-A29019-21
of an appellant.”); Commonwealth v. Greer, 866 A.2d 433, 435 n.2
(Pa.Super. 2005) (“Factual allegations, de hors the record, cannot be
considered by a reviewing court[.]” (cleaned up)). Instead, I would decide
the issue based upon the record and contentions presented by the parties.4
As noted above, Black’s Law Dictionary defines “commit” to mean as
follows: “To send (a person) to prison or to a mental health facility, esp. by
court order.” COMMIT, Black’s Law Dictionary (11th ed. 2019). Nothing in
that definition warrants inclusion of the lack-of-volition limitation that the
Majority ascribes to it. Indeed, Merriam-Webster offers a consistent but more
comprehensive definition that even more clearly shows that a commitment is
not necessarily involuntary:
a: to put into charge or trust : ENTRUST
____________________________________________
4 The Majority indicates that my observation that it is articulating arguments
not proffered by Appellant “ignores . . . that in the direct appeal, two of the
three judges on the panel questioned whether it was proper to assume that
parolees residing in halfway houses were ‘inmates’” and that, since those
judges lacked authority to decide the issue then, it is doing so now since
Appellant’s “PCRA petition arose directly from that concern.” Majority Opinion
at 14-15 n.9. I am fully mindful of the history of this case and Appellant’s
good fortune in having this appeal assigned to a panel including those two
judges. However, I fail to see why the fact that the Majority began its sua
sponte advocacy on Appellant’s behalf in a prior appeal renders the
continuation of that practice allowable or appropriate. Simply put, Appellant
has never claimed that the terms of his parole agreement place him outside
of the statutory definition of inmate. Nor has he ever entered that agreement
into evidence, or mentioned any of its terms, in attempting to meet his burden
of proving an entitlement to PCRA relief. Yet the Majority chooses to reverse
the PCRA court based upon the assumed terms of this agreement. In my
view, the Majority fails to justify its decision to do so instead of limiting itself
to the certified record and the arguments of Appellant.
- 12 -
J-A29019-21
b: to place in a prison or mental institution
c: to consign or record for preservation
d: to put into a place for disposal or safekeeping
e: to refer (something, such as a legislative bill) to a committee
for consideration and report
https://www.merriam-webster.com/dictionary/commit (definition 3) (last
visited May 6, 2022).
The Majority blatantly ignores that the common usage of the term
“commit” includes a person’s voluntary, consensual entrustment of himself to
a place or a cause. The Black’s Law Dictionary definition neither includes or
excludes consensual commitment. Indeed, the law has long recognized the
voluntary commitment of a person to an institution. See, e.g., Brown v. End
Zone, Inc., 259 A.3d 473, 480 (Pa.Super. 2021) (discussing the appellee’s
“voluntary commitment into a mental health institution”); Commonwealth
v. C.B., 452 A.2d 1372, 1373 (Pa.Super. 1982) (referencing a defendant who
“voluntarily committed himself” to a state hospital for inpatient treatment
pursuant to 50 P.S. § 7203).
The entrustment-focused definition quoted above is wholly in keeping
with this Court’s construction of the term in the only other published decision
concerning § 5123’s definition of inmate. In Commonwealth v. Cornelius,
180 A.3d 1256 (Pa.Super. 2018), the appellant was arrested for a parole
violation, and was taken to the Warren County Jail. While being processed at
the jail, it was discovered that he was wearing shorts that had a baggie of
- 13 -
J-A29019-21
methamphetamine sewn into the material. As a result, he was charged with
and convicted pursuant to § 5123(a.2). On appeal, he argued that he did not
fit the definition of inmate because he was at home at the time that he came
into possession of the contraband. This Court rejected the argument as
follows:
It is undisputed that [the a]ppellant 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, [the
a]ppellant 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, [the
a]ppellant was still wearing his methamphetamine-lined shorts,
and thus had a controlled substance on his person.
Id. at 1260. Stated differently, the appellant in Cornelius became an
“inmate” for purposes of § 5123 at the time that he was entrusted to the
custody of the correctional institution, or placed with its staff for disposition
or safekeeping.5,6
____________________________________________
5 I observe that the Cornelius Court’s focus on custody for purposes of the
“committed to” aspect of § 5123’s inmate definition is consistent with our
administrative code, which defines an “inmate” as “[a] person committed to
the custody of or confined by the Department [of Corrections].” 37 Pa. Code
§ 91.1 (emphasis added). I further note that construing “committed to” to
mean “entrusted to” is also consistent with our obligation to assume that our
legislature meant each term within § 5123(e) to have a distinct meaning.
See, e.g., Commonwealth v. McClelland, 233 A.3d 717, 734 (Pa. 2020).
The Majority fails to consider whether its “sent involuntary” definition rendered
“committed to” superfluous of the terms “under sentence to” and “confined
in.”
6 The Majority states that the Cornelius decision is “unavailing” because it
“speaks to points of law that are not now at issue.” Majority Opinion at 12.
- 14 -
J-A29019-21
Here, Appellant was not paroled to his home, but rather placed at
Renewal by the Board for safekeeping, and entrusted to Renewal as a
condition of his parole. When Appellant accepted parole, the Board sent him
to Renewal, a correctional institution. In other words, when Appellant opted
to agree to the conditions of his parole, he voluntarily committed himself to a
correctional institution.
Consequently, pursuant to the plain meaning of § 5123(e), 7 Appellant
was an “inmate” at Renewal Center on March 5, 2018, when he was found
there with heroin and fentanyl on his person. There is no dispute that heroin
and fentanyl are unlawful controlled substances. Hence, the evidence was
sufficient to sustain Appellant’s contraband conviction pursuant to
§ 5123(a.2). As a result, Appellant’s claim that his trial and appellate counsel
____________________________________________
Not only does Cornelius squarely address the precise issue before us, namely
the meaning to the term “committed to” in § 5123(e), but it is the only
precedent that does so. The fact that the Majority finds it irrelevant is further
indication that it is deciding the issue it wants to decide, not actually
construing the terms of the implicated statute.
7 The Majority suggests that if a valid interpretation of the term “committed
to” includes anything other than an involuntary commitment, then the term is
ambiguous and the Rule of Lenity applies to require adoption of the strictest
construction of the term. See Majority Opinion at 12. However, as I noted
supra, the mandate of strict construction of penal statutes “does not require
that our Court give the words of a statute their narrowest possible meaning,
nor does it override the general principle that the words of a statute must be
construed according to their common and approved usage.” Commonwealth
v. Hart, 28 A.3d 898, 908 (Pa. 2011) (cleaned up). Since the plain and
common usage of the term “commit” includes voluntary commitment, the
statute is not ambiguous and the Rule of Lenity is inapplicable.
- 15 -
J-A29019-21
were ineffective for not challenging the sufficiency of the evidence to establish
the “inmate” element of the offense lacks merit. Counsel cannot be deemed
ineffective for failing to raise this claim. See, e.g., Commonwealth v.
Hannibal, 156 A.3d 197, 217 (Pa. 2016) (“[C]ounsel cannot be deemed
ineffective for failing to raise a meritless claim.”). Accordingly, I would hold
that the PCRA court did not err in dismissing his PCRA petition.8
For these reasons, I respectfully dissent.
____________________________________________
8 The Majority holds that the claim has arguable merit, and, it would seem,
that Appellant was prejudiced by counsel’s failure to raise it on direct appeal.
See Majority Opinion at 10 (indicating that there is a reasonable likelihood
that counsel would have prevailed in challenging the sufficiency of the
evidence based upon Appellant not being an inmate). The Majority indicates
that, therefore, the order dismissing Appellant’s claim of ineffective assistance
of counsel “cannot stand,” vacates it, and remands the case. Id. at 2, 15.
The Majority offers no instructions to the PCRA court about what should
happen after remand. I assume that the Majority intends that the PCRA court
hold a hearing to determine whether counsel had a reasonable basis for failing
to pursue the claim. See, e.g., Commonwealth v. Postie, 200 A.3d 1015,
1023 (Pa.Super. 2018) (“Generally, an evidentiary hearing on counsel’s
strategy is preferred before the PCRA court decides if counsel lacked a
reasonable basis for his actions, except in those cases where the reasons for
counsel's conduct are clear and apparent from the record.”).
- 16 -