J-S78013-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ROBERT M. BOARDMAN

                            Appellant                 No. 380 MDA 2014


           Appeal from the Judgment of Sentence January 14, 2014
              In the Court of Common Pleas of Luzerne County
             Criminal Division at No(s): CP-40-CR-0002109-2011


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                      FILED JANUARY 09, 2015

        Appellant, Robert M. Boardman, appeals from the judgment of

sentence entered in the Luzerne County Court of Common Pleas, following

his jury trial conviction for bringing contraband into a prison.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

On March 19, 2011, Appellant went to the State Correctional Institution at

Dallas (“SCI-Dallas”) to visit his son, who is an inmate there.     Appellant’s

daughter and three grandchildren accompanied Appellant to the prison.

Appellant was familiar with the security procedures for visitors; he had

already visited his son in prison approximately twenty-six times. Extensive

signage at SCI-Dallas warned visitors that it is illegal to bring drugs or
____________________________________________


1
    18 Pa.C.S.A. § 5123(a).
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weapons onto prison property.           When Appellant arrived at the prison, he

removed some change from his pockets and left it in the car. One of the

grandchildren then excitedly ran out of the car into the parking lot.

Appellant chased after the child to bring him back. Appellant then entered

the prison.    A security officer asked Appellant to pull out his pockets for

scanning.      When Appellant pulled out his pockets, the officer noticed

Appellant make a fist with his left hand and put it behind his back.        The

officer asked Appellant what he was hiding. Appellant replied, “Excuse me,

what?”      The officer asked the question again, at which point Appellant

dropped four methadone pills out of his left hand.        At the time, Appellant

had a methadone prescription stemming from his involvement in a railroad

accident in 1986. He was taking nine pills daily.

       The Commonwealth charged Appellant with one (1) count of bringing

contraband into a prison. On March 26, 2012, Appellant filed a motion to

dismiss the charge on the ground that the incident was a de minimis

infraction. The trial court denied the motion on June 1, 2012. On October

21, 2013, a jury convicted Appellant of bringing contraband into a prison.

On January 14, 2014, the court sentenced Appellant to a term of twenty-four

(24) to forty-eight (48) months’ incarceration.2

____________________________________________


2
  This sentence included a mandatory minimum of at least two years per 18
Pa.C.S.A. § 5123 (stating: “(a.1) Mandatory minimum penalty.─Any person
convicted of a violation of subsection (a) shall be sentenced to a minimum
(Footnote Continued Next Page)


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Appellant filed a timely notice of appeal on January 30, 2014.      The court

ordered Appellant to file a concise statement of errors complained of on

appeal, pursuant to Pa.R.A.P. 1925(b).            After the court granted an

extension, Appellant timely complied.

      Appellant raises a single issue for our review:

          WHETHER THE TRIAL COURT ERRED BY DENYING
          [APPELLANT’S] MOTION TO DISMISS AS A DE [MINIMIS]
          INFRACTION, THE CHARGE OF CONTROLLED SUBSTANCE
          CONTRABAND TO CONFINED PERSON?

(Appellant’s Brief at 1).

      In his sole issue, Appellant argues his actions did not cause or

threaten the harm contemplated by 18 Pa.C.S.A. § 5123(a), which

criminalizes the act of bringing contraband into a prison. Appellant asserts
                       _______________________
(Footnote Continued)

sentence of at least two years of total confinement, notwithstanding any
other provision of this title or any other statute to the contrary. Nothing in
this subsection shall prevent the sentencing court from imposing a sentence
greater than that provided in this subsection, up to the maximum penalty
prescribed by this title for a felony of the second degree. There shall be no
authority in any court to impose on an offender to which this subsection is
applicable any lesser sentence than provided for in subsection (a) or to place
such offender on probation or to suspend sentence. Sentencing guidelines
promulgated by the Pennsylvania Commission on Sentencing shall not
supersede the mandatory sentences provided in this subsection.            If a
sentencing court refuses to apply this subsection where applicable, the
Commonwealth shall have the right to appellate review of the action of the
sentencing court. The appellate court shall vacate the sentence and remand
the case to the sentencing court for imposition of a sentence in accordance
with this subsection if it finds that the sentence was imposed in violation of
this subsection”). Nothing in this sentence implicates the United States
Supreme Court’s recent decision in Alleyne v. United States, ___ U.S.
___, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013).



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he was in possession of a drug legally prescribed to him when he entered

SCI-Dallas. Appellant contends he simply forgot about the methadone pills

in his pocket because he was in a hurry and his grandchild created a

distraction. Appellant claims this explanation is bolstered by the fact that he

was well aware he would be searched multiple times before seeing his son.

Appellant concludes his offense was de minimis, and this Court should

reverse his conviction. We disagree.

      We review a trial court’s ruling that a defendant’s criminal conduct was

not de minimis for an abuse of discretion.     Commonwealth v. Olavage,

894 A.2d 808 (2006), appeal denied, 589 Pa. 720, 907 A.2d 1102 (2006).

      The Crimes Code governs de minimis infractions as follows:

         § 312. De minimis infractions

            (a) General rule.─The court shall dismiss a
            prosecution if, having regard to the nature of the
            conduct charged to constitute an offense and the nature
            of the attendant circumstances, it finds that the conduct
            of the defendant:

                  (1) was within a customary license or tolerance,
                  neither expressly negatived by the person whose
                  interest was infringed nor inconsistent with the
                  purpose of the law defining the offense;

                  (2) did not actually cause or threaten the harm
                  or evil sought to be prevented by the law defining
                  the offense or did so only to an extent too trivial
                  to warrant the condemnation of conviction; or

                  (3) presents such other extenuations that it
                  cannot reasonably be regarded as envisaged by
                  the General Assembly or other authority in
                  forbidding the offense.

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18 Pa.C.S.A. § 312(a)(1)-(3).

      “The purpose of Section 312 is to remove petty infractions from the

reach of the criminal law.”     In re M.M., 855 A.2d 112, 114 (Pa.Super.

2004).   “An offense alleged to be de minimis in nature should not be

dismissed where either harm to the victim or society in fact occurs.”

Commonwealth v. Lutes, 793 A.2d 949, 963 (Pa.Super. 2002).

      Section 5123 of the Crimes Code provides in relevant part:

         § 5123. Contraband

            (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 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….

18 Pa.C.S.A. § 5123(a) (footnote omitted). The statute criminalizes the act

of bringing controlled substances into a prison, regardless of whether the

offender does so with the intent to transfer the substance to persons

confined in the facility.   Commonwealth v. Williams, 525 Pa. 216, 579

A.2d 869 (1990).

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      Instantly, Appellant was carrying four methadone pills in his pocket

when he entered SCI-Dallas on the morning of March 19, 2011. Appellant

had a prescription for the pills.     When a prison security officer asked

Appellant to empty his pockets, Appellant concealed the pills in a closed fist

behind his back. The officer had to ask Appellant twice what he was hiding

before Appellant revealed the drugs. Appellant’s attempts to hide the pills

reflected a consciousness of guilt. His ultimate failure to pass the pills to an

inmate did not necessitate a finding that the infraction was de minimis.

Appellant’s reliance on Williams, supra, is misplaced.       In Williams, the

Supreme Court noted that the defense of a de minimis infraction “might” be

asserted to dismiss a charge of bringing contraband into a prison, such as in

the case of “a religious or medical visitor who is in possession of a legal

drug.” Id. at 221, 579 A.2d at 871 (emphasis in original). Nevertheless,

the Williams Court’s observation, which was not central to its holding,

made no suggestion that a trial court must dismiss the charge under these

circumstances. Here, the trial court was not obligated to accept Appellant’s

innocent explanation of his criminal conduct.    Therefore, the court did not

abuse its discretion when it declined to dismiss the charge against Appellant

as a de minimis violation of 18 Pa.C.S.A. § 5123(a). See Olavage, supra;

Lutes, supra. Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/9/2015




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