Com. v. Diaz, H.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
HERIBERTO EDDIE DIAZ : No. 688 MDA 2019
Appeal from the Order Entered March 25, 2019,
in the Court of Common Pleas of Dauphin County,
Criminal Division at No(s): CP-22-CR-0001830-2018.
BEFORE: KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED SEPTEMBER 09, 2020
The Commonwealth appeals from the order granting the petition for writ
of habeas corpus filed by Heriberto Eddie Diaz. We affirm.
On January 23, 2018, employees of Keystone Correctional Services
(“Keystone”) reported a drug overdose event to 911, seeking medical
attention for Diaz, a resident of the facility, who seemed disoriented and had
fallen to the floor complaining of tightness in his chest. A Keystone employee
searched Diaz and found two bags containing heroin on his person.
The trial court summarized the relevant factual and procedural history
that followed:
[Diaz] was charged with contraband, possession of a
controlled substance, and drug paraphernalia, as he was allegedly
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* Former Justice specially assigned to the Superior Court.
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in possession of a controlled substance while residing at Keystone
. . . . On April 5, 2018, following a preliminary hearing before [a]
district magistrate . . ., it was determined that a prima facie case
was established and the charges were forwarded to this court for
disposition. [Diaz filed a] petition for habeas corpus, [wherein he]
asserted that a prima facie case with regard to the charges of
contraband were not established. Specifically, it was averred that
Keystone . . . is not a penal or correctional institution under the
pertinent statue and, therefore, the charges warranted dismissal.
...
At [a] March 25, 2019 habeas corpus hearing, there was a
stipulation to adopt the transcript from a prior proceeding,
specifically, the habeas corpus hearing in Commonwealth v.
William Quarles (4235-CR-2018 ). Daniel McIntyre, the Director
of Community Corrections for the Department of Corrections
[(“DOC”)], testified at the Quarles hearing. Mr. McIntyre testified
that Keystone . . . is a 150-male group home facility housing those
who are just coming out of a state correctional facility until they
are able to get into a home plan. A referral unit, which is
underneath the Department of Community Corrections Bureau
[(“DOCC”)], gets referrals from state correctional institutions to
find a home plan suitable for re-entry. It also houses the “halfway
back” population, which are those who are in violation of certain
conditions and are placed there pending an adjustment or re-entry
into the community. Keystone is a secure facility, as it is equipped
with metal detectors and wands, and searches are conducted;
residents must be searched upon entry. There is a schedule in
place for the residents to come and go for work, leisure activities,
and appointments. Aside from those residents who are serving a
state intermediate (SI) sentence, the residents at Keystone have
been paroled and Keystone serves as their parole address. If one
of those residents were to walk out of Keystone, or not return from
work or a home pass, they would not be charged with escape
under the criminal code; rather, it would be considered a parole
violation. The [DOCC] does not give time credit towards the jail
portion of a sentence for time spent at Keystone. For the time
that the residents are there, they are not considered to be in jail;
they are not serving a jail sentence. Rather it is a temporary
residence for parolees until they obtain a home plan. When
residents leave Keystone, they are not escorted, nor are they
guarded or under armed transport to their
appointments/employment.
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Terry Davis, the owner and president of Keystone, also
testified at the Quarles hearing. He described Keystone as a very
secure facility, with twelve to fifteen foot fencing with razor wire
on top. The [DOCC] decides who is assigned to Keystone, and re-
entrants must abide by a set of standard rules. Such rules, as set
forth by the [DOCC], include not bringing drugs or contraband into
the program, no assaultive behavior, and no leaving without
permission. Mr. Davis further testified that Keystone is a
community corrections facility, not a prison. The land that the
building is built upon is owned by Mr. Davis, not by Dauphin
County or the Commonwealth; Mr. Davis pays the mortgage.
There is no evidence that the state leases any portion of the
situate land.
In addition to the foregoing testimony being made part of
the record in the habeas corpus hearing in this case, there was
also testimony offered by Howard Potts, a supervisor at Keystone.
When asked about the types of residents at Keystone, Mr. Potts
testified that they included state IP cases, half-way backs,
parolees, and sex offenders. He described half-way backs as
those that had basically been living on the street on an approved
home plan and had violated parole, so they are mandated by the
[DOCC] to live at Keystone. He also iterated that Keystone is a
secure facility with rules established by the [DOCC].
Mr. Potts testified that . . . Diaz was a half-way back, so he
was mandated by the [DOCC] to stay at Keystone. When asked
to explain the difference between a halfway-back and those on
parole, Mr. Potts repeated that while parolees are coming straight
out of incarceration, a halfway-back has already been incarcerated
then moved to an approved home plan before coming to Keystone.
Also, regarding the half-way back population, those individuals are
still under supervision and Keystone is their approved parole
residence; the rules for half-back residents and parole residents
are the same. The half-back population can go to work on their
own, have leisure time on their own, and are not required to be
escorted by a staff person for any of these outside activities. Mr.
Potts stated that individuals are permitted to leave the premises
for work, for job searches, and for four to six hour leisure passes.
Finally, in response to questions from this court, Mr. Potts testified
that Keystone is a privately owned company, he does not receive
a paycheck from the Commonwealth of Pennsylvania, and he was
hired by Terry Davis. Mr. Potts stated that Mr. McIntyre, as
director of community corrections for the [DOCC], would not be
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able to fire Mr. Potts. On the other hand, Mr. Davis, as president
of Keystone, would be authorized to fire him. It is important to
note that Mr. Potts conceded that in any instance where his
testimony is inconsistent with the testimony of Mr. McIntyre or Mr.
Davis, the testimony of Mr. McIntyre and Mr. Davis would be
superior to his own.
Trial Court Opinion, 8/14/19, at 1-5 (footnotes, citations to the record, and
unnecessary capitalization omitted).
At the conclusion of the March 25, 2019, hearing, the trial court verbally
granted Diaz’s habeas corpus petition, and an order dismissing the charges
against Diaz was entered on the docket on the same date. On April 26, 2019,
32 days later, the Commonwealth filed its notice of appeal. 1 Both the
Commonwealth and the trial court complied with Pa.R.A.P. 1925.
The Commonwealth raises the following issues for our review:
A. Whether [the Commonwealth’s] instant appeal is timely where
the lower court did not enter an order on the docket granting
[Diaz’s] habeas corpus petition until the last day of the thirty
day notice of appeal deadline from the verbal order?
B. Whether the lower court erred in granting [Diaz’] habeas
corpus petition where [Diaz] brought heroin into Keystone . . .
which constitutes a prison as [Diaz] was remitted to official
detention therein by the Pennsylvania Department of
Corrections and Pennsylvania Board of Probation and Parole to
serve at least a portion of his state sentence?
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1 The Commonwealth included in its notice of appeal its good-faith certification
that the trial court’s order would terminate or substantially handicap its
prosecution of Diaz. See generally, Commonwealth v. Dugger, 486 A.2d
382 (Pa 1988).
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Commonwealth Brief at 4 (unnecessary capitalization omitted).
In its first issue, the Commonwealth contends that its appeal was
timely-filed.2 Pursuant to our appellate rules, a notice of appeal must be filed
within thirty days after the entry of the order from which the appeal is taken.
See Pa.R.A.P. 903. The date of entry of an order (and the date the appeal
period begins to run) is the date the clerk of courts mails or delivers copies of
the order to the parties. See Commonwealth v. Carter, 122 A.3d 388, 391
(Pa. Super. 2015); see also Pa.R.A.P. 108(a)(1), (d)(1); Pa.R.Crim.P.
114(c)(2)(c) (providing that docket entries “shall contain” the “date of service
of the order”). The clerk may send an electronic copy of the order to an
attorney (or a party, if unrepresented) if the attorney has requested to receive
electronic service. See Pa.R.Crim.P. 114(B)(3)(c). When there is a docketing
failure or lack of notice, this Court will excuse an untimely appeal. See e.g.,
Commonwealth v. Jerman, 762 A.2d 366, 368 (Pa. Super. 2000).
The Commonwealth maintains that, although Diaz’s habeas corpus
petition was verbally granted on March 25, 2019, the order was neither
entered on the docket nor served on Diaz or the Commonwealth until April 24,
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2 Neither the trial court nor Diaz addressed this issue. Nevertheless, this Court
issued a rule to show cause why the appeal should not be quashed as
untimely. The Commonwealth responded to the rule. Thereafter, the rule
was discharged, and the matter was referred to this panel for determination
as to whether the appeal should be quashed as untimely-filed.
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2019. The Commonwealth claims that it then timely filed its notice of appeal
two days later, on April 26, 2019.
Based on our review, the record contains a written order entered on
March 25, 2019, dismissing all charges against Diaz.3 Additionally, the docket
reflects an entry on March 25, 2019, indicating that a hearing was conducted,
and that the charges filed against Diaz were dismissed. See Trial Court
Docket, CP-22-CR-0001830-2018, at 8. The March 25, 2019 docket entry
further indicates that the public defender was served with the dismissal
order via eservice on that same date.4 Id. However, there is no entry on the
docket reflecting that any type of service of the dismissal order was ever made
on the district attorney.5
Given this failure to comply with the mandatory procedures under
Pa.R.CrimP. 114 and Pa.R.A.P. 108, we are unable to ascertain the date upon
which the Commonwealth was served with the trial court’s dismissal order
and, therefore, simply cannot conclude when, if ever, the thirty-day appeal
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3 The Commonwealth, as the appellant, did not attach a copy of the written
order granting Diaz’s petition to its notice of appeal. However, upon review
of the record, we located the dismissal order entered on March 25, 2019,
granting Diaz’s petition and dismissing all charges against him.
4 The docket suggests that both the public defender and the district attorney
requested to receive electronic service from the clerk of courts, as all service
to these parties was made electronically via eservice. See Trial Court Docket,
CP-22-CR-0001830-2018, at 5-9.
5Although the Commonwealth claims that a formal order granting the petition
was entered on April 24, 2019, we find no entry whatsoever on that date.
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period began to run. As a result, there is no basis for us to conclude that the
Commonwealth’s notice of appeal was not timely filed. We therefore decline
to quash the appeal as untimely.
In its second issue, the Commonwealth contends that the trial court
erred in granting Diaz’s habeas corpus petition. Our scope and standard of
review regarding a habeas corpus petition is as follows: “We review a trial
court’s grant [or denial] of a pre-trial habeas corpus motion de novo and our
scope of review is plenary.” See Commonwealth v. Dantzler, 135 A.3d
1109, 1112 (Pa. Super. 2016) (en banc).
As this Court explained in Dantzler:
A pre-trial habeas corpus motion is the proper means for
testing whether the Commonwealth has sufficient evidence to
establish a prima facie case. To demonstrate that a prima facie
case exists, the Commonwealth must produce evidence of every
material element of the charged offense(s) as well as the
defendant’s complicity therein. To meet its burden, the
Commonwealth may utilize the evidence presented at the
preliminary hearing and also may submit additional proof.
Id. (internal quotation marks and citations omitted).
In reviewing a trial court’s order granting [or denying] a
defendant’s petition for writ of habeas corpus, we “must generally
consider whether the record supports the trial court’s findings, and
whether the inferences and legal conclusions drawn from those
findings are free from error.” . . . Notably, the Commonwealth
does not have to prove the defendant’s guilt beyond a reasonable
doubt. Further, the evidence must be considered in the light most
favorable to the Commonwealth so that inferences that would
support a guilty verdict are given effect.
Commonwealth v. Santos, 876 A.2d 360, 363 (Pa. 2005) (citations
omitted).
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Under the Statutory Construction Act, the object of all statutory
construction is to ascertain and effectuate the General Assembly’s intention.
1 Pa.C.S.A. § 1921(a). When the words of a statute are clear and free from
ambiguity, the letter of the statute is not to be disregarded under the pretext
of pursuing its spirit. See 1 Pa.C.S.A. § 1921(b). Words and phrases are to
be construed according to the rules of grammar and according to their
common and approved usage, unless they are technical words and phrases
that have acquired a peculiar meaning or definition. Id. § 1903(a). Further,
penal statutes are to be strictly construed. Id. § 1928(b)(1).
In the court below, the Commonwealth sought to convict Diaz of the
crime of contraband, which is defined by the crimes code as follows:
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 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.A. § 5123(a).
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The statute further provides that “[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[.]” 18 Pa.C.S.A. §
5123(a.2). Additionally, an “inmate” is defined by the statute as “[a] male or
female offender who is committed to, under sentence to or confined in a penal
or correctional institution.” 18 Pa.C.S.A. § 5123(e).6
The Commonwealth contends that, by bringing heroin into Keystone,
Diaz committed a second-degree felony because Keystone constitutes a
“prison” within the meaning of section 5123(a). Commonwealth Brief at 14.
In support of its position, the Commonwealth points to the Prisoner Litigation
Act, 42 Pa.C.S.A. § 6601-6608, which defines a “prison” as “a State, county,
or other facility which incarcerates or officially detains persons accused of,
convicted of, or sentenced for violations of criminal law or the terms or
conditions of parole, probation, pretrial release, or a diversionary program.”
42 Pa.C.S.A. § 6601.
The Commonwealth argues that the restrictive nature of Keystone
supports the conclusion that it constitutes a prison for purposes of the
contraband statute. It points out that Keystone is a secure facility, inmates
must be searched upon entry, staff conducts pat downs and strip searches of
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6 The statute does not define “prisoner.”
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the inmates, inmates cannot come and go as they please; rather, the
departure must be scheduled in advance and approved. The Commonwealth
additionally points out that inmates are able to serve portions of their state
sentences at Keystone, and they will be charged with escape if they do not
return to Keystone.
The Commonwealth asserts that the trial court erred by finding that
“[n]o evidence was adduced [at the habeas hearing] that would indicate any
time [Diaz] spent in this parole facility would count or be credited towards
time incarcerated.” Commonwealth’s Brief at 20 (citing Trial Court Opinion,
8/14/19, at 2, n.4). According to the Commonwealth, “[w]hether the inmates
would be entitled to time credit for their time spent in Keystone in the event
of a subsequent parole violation and revocation is not at issue.” Id. The
Commonwealth argues that it presented testimony at the hearing that inmates
are able to serve portions of their state sentences in Keystone, and that the
time spent in Keystone is being credited towards inmates’ maximum
sentences. Id. (citing N.T., 10/8/18, at 10). The Commonwealth also argues
that it presented testimony at the habeas hearing that halfway back offenders,
such as Diaz, must remain at Keystone until they find a suitable home plan or
serve their maximum state sentence. Id. (citing N.T., 10/8/18, at 6).
Finally, the Commonwealth argues that, because the question of
whether a community corrections facility such as Keystone constitutes a
“prison” for purposes of the contraband statute is not specified, this statutory
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phrase is ambiguous under the present facts such that statutory interpretation
is warranted. In this regard, the Commonwealth contends that the object of
the contraband statute is to protect inmates and prison staff from coming into
contact with dangerous drugs at the hands of a reckless offender, such as
Diaz. Specifically, it asserts that the intent of the legislature in part a.2 of
Section 5123 “is the prevention of inmates obtaining any controlled substance
in any amount whatsoever; in other words the contraband statute seeks
absolute abstinence by inmates.” Id. at 22 (citing Commonwealth v.
Gerald, 47 A.3d 858, 826 (Pa. Super. 2012)).
The Commonwealth argues that the Pennsylvania Supreme Court has
held that Section 5123 should be interpreted broadly in order to keep illicit
drugs out of a prison setting. Id. at 22-23 (citing Commonwealth v.
Williams, 579 A.2d 869, 871 (Pa. 1990)). The Commonwealth claims that,
given the custodial and restrictive nature of Keystone, inmates and staff are
not able to remove themselves a sufficient distance from the zone of danger
created by inmates smuggling in and exposing others to dangerous drugs. Id.
at 23.
The Commonwealth further contends that, pursuant to the Pennsylvania
Supreme Court’s mandate in Commonwealth v. Wegley, 829 A.2d 1148(Pa. 2003), courts are to look past the lack of a traditional institutional setting
and instead focus on the actual effects of the confinement—a restraint of the
person’s liberty to come and go as he pleases and engage in outside
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activities—which effects constitute “detention.” Commonwealth Brief at 19
(citing Commonwealth v. Maldonado, 966 A.2d 1144, 1146 (Pa. Super.
2009)).7
The trial court considered the Commonwealth’s second issue and
determined that Diaz was not an “inmate” in a “penal or correctional
institution” under section 5123 at the time of his alleged offense. The court
reasoned:
[Diaz’s] status as a “half-way back” resident is
indistinguishable from a parole resident, as the rules for both are
the same at Keystone. These residents go to work on their own,
can search for employment on their own, and have lengthy leisure
time on their own. The same “rules” are often applied to someone
living on their own at home while on parole. The fact that [Diaz]
may have been “mandated” to stay at Keystone is the same as an
“approved” residence of a parolee; Keystone serves as his parole
address. As testified to by both Mr. Davis and Mr. McIntyre, a
resident at Keystone is not considered to be in jail; rather, it is a
temporary residence for parolee until they obtain a home plan.
The fact that the DOC decides who is assigned to Keystone and
issues a standard set of rules, does not elevate Keystone to the
status of a “penal or correctional institution.” Keystone is a
community corrections facility, not a prison, and is privately
owned. As a supervisor at Keystone, Mr. Potts was hired by Mr.
Davis, president and owner of Keystone
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7 The Commonwealth argues that Maldonado is analogous to this case. We
disagree. Maldonado involved the trial court’s grant of a habeas corpus
petition filed by a parolee based on the Commonwealth’s failure to establish a
prima facie case of escape from a detainment facility under 18 Pa.C.S.A. §
5121. This court vacated and remanded on the basis that the detention
facility, though not a prison, may subject one to official detention as
contemplated in the escape statute. The statute at issue herein, 18
Pa.C.S.A. § 5123, was not addressed or interpreted in Maldonado. Thus, we
find that case inapposite.
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[T]he charge of contraband clearly requires the facility in
question to be one of the following: A. A prison[;] B. A mental
hospital[;] C. Any building appurtenant thereto[; or] D. Land
granted to or owned or leased by the Commonwealth or county
for the use and benefit of the prisoners and inmates.
In reverse consideration, we find there to be no state or
county interest in the realty of Keystone. No property interest
exists and therefore the fourth type of facility does not apply.
Next, Keystone is located in West Hanover Township, Dauphin
County and, as such, is located miles from any prison or mental
hospital. Therefore, it cannot be said to be a building appurtenant
thereto. Accordingly, the third type of facility does not apply.
Without question, Keystone is not a mental hospital. This being
the case, the second type of facility does not apply. Left remaining
is the question of whether the privately-owned and run residential,
community facility serving as either a re-entry residence from
incarceration (or an altered, albeit more restrictive, residential
housing within the community) is equivalent to a prison. As the
evidence has borne out this very description, and noting that no
incarcerated time credit is given to a defendant’s stay within such
facility, Keystone is not equivalent to a prison.
In light of the description and intended purpose of
privately-owned Keystone, and given the fact that the residents
there do not fall within the purview of inmates in a penal or
correctional institution, we [] do not find that the Commonwealth’s
cited definition of “prison” applicable. . . . Such definition, taken
from the Pennsylvania statute governing prison litigation, is not
included in the contraband statute, and clearly speaks to those
incarcerated in the traditional sense.
Because we conclude that [Diaz] was not an inmate and did
not bring a controlled substance into any of the enumerated
locations stated in those required in the crime of contraband under
the contraband statute, the charges against him were properly
dismissed.
Trial Court Opinion, 8/14/19, at 6-7 (footnotes omitted, formatting altered).
The record supports the trial court’s findings, and the inferences and
legal conclusions drawn from those findings are free from error. See Santos,
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supra. Although Keystone is a secure facility with numerous restrictions, it
simply does not fall within the four categories of institutions enumerated under
section 5123. Further, although section 5123 does not include a definition of
the terms “prison” or “prisoner,” the trial court was presented with ample
testimony that Keystone is not a “prison” according to the common and
approved usage of that term, particularly as to halfway back residents such
as Diaz, who may leave the facility to work, seek employment, or simply to
enjoy leisure time. Thus, the trial court properly determined that the
Commonwealth did not establish a prima facie case of contraband against
Diaz. Accordingly, we affirm the trial court’s order granting Diaz’s habeas
corpus petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/09/2020
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