J-S82039-17

                              2018 PA Super 49

COMMONWEALTH 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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J-S82039-17


         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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J-S82039-17


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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