Opinion
601 WDA 2021 J-A29019-21
06-23-2022
COMMONWEALTH OF PENNSYLVANIA v. RONNIE LEHMAN Appellant
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. [*]
OPINION
PELLEGRINI, J.
While residing at a halfway house as a condition of parole, Ronnie Lehman (Lehman) used a controlled substance and overdosed. Although he was "at liberty" on parole at the time, Lehman was charged and convicted under 18 Pa.C.S. § 5123(a.2), which prohibits the possession of a controlled substance by a "prisoner or inmate." After he was sentenced to a prison term of 35 to 90 months on that count and his judgment of sentence was affirmed on direct appeal, Lehman timely filed a petition for post-conviction relief, contending that his trial counsel performed ineffectively in failing to assert that his parolee status precluded conviction. The Court of Common Pleas of Allegheny County (PCRA court) summarily dismissed the petition, finding that the underlying claim lacked legal merit. Because this ruling rests on a misapprehension of the nature of parole, the PCRA court's order denying post-conviction relief cannot stand.
61 Pa.C.S. § 6138(2.3) provides in relevant part that, "[a] parolee is at liberty on parole when the parolee is residing at a community corrections center, community corrections facility or group-based home for purposes of this section." Renewal is a community corrections center.
42 Pa.C.S. §§ 9541-9546 (Post-Conviction Relief Act (PCRA)).
I.
In 2018, Lehman was residing in a halfway house called Renewal as a condition of parole. Early one morning, Lehman was discovered at Renewal, unconscious on a bathroom floor. First responders found on his person a hypodermic needle and bags of heroin. Lehman was taken to a hospital where he recovered.
Following his overdose, the Commonwealth charged Lehman with three counts: Providing Contraband to a Confined Person (18 Pa.C.S. § 5123(a)); Possession of a Controlled Substance (35 P.S. § 780-113(a)(16)); and Possession of Drug Paraphernalia (35 P.S. § 780-116(a)(32)). Defense counsel moved to dismiss the three counts pursuant to the Drug Overdose Response Immunity Act, 35 Pa.C.S. § 780-113.7, which shields overdose victims from being prosecuted for certain enumerated offenses, including the latter two counts above.
In response to defense counsel's motion, the Commonwealth nolle prossed the controlled substance and paraphernalia charges. The contraband charge was amended to an alleged violation of 18 Pa.C.S. § 5123(a.2) (possession of contraband by a prisoner or inmate), which is not an enumerated offense under the Act. Lehman was ultimately found guilty of that sole remaining count and was sentenced to a prison term of 35 to 90 months.
On direct appeal, Lehman argued in part that the contraband charge should have been dismissed under the Act. However, we affirmed Lehman's judgment of sentence, holding that the Act did not afford him immunity because the crime of possession of contraband by an inmate was not an enumerated offense. See Commonwealth v. Lehman, 231 A.3d 877, 883 (Pa. Super. 2020); see also Commonwealth v. Lehman, 238 A.3d 328 (Pa. 2020) (denying petition for allowance of appeal).
In a concurring opinion, two of the three judges on the panel questioned whether it was proper to assume that parolees residing in halfway houses like Renewal were "inmates" or "prisoners" under the contraband statute. See Commonwealth v. Lehman, 231 A.3d 877, 884 (Pa. Super. 2020) (Pellegrini, J. concurring, joined by Bender, P.J.E.). However, since Lehman's counsel had not raised the issue, its merits could not be reached. See id.
Lehman filed a timely PCRA petition, asserting that his trial counsel performed ineffectively by failing to challenge the sufficiency of the evidence based on his parolee status. That is, Lehman argued that his status as a parolee, if raised, would have precluded the Commonwealth from proving beyond a reasonable doubt that he was an "inmate" or a "prisoner" under Section 5123(a.2).
The PCRA court issued a notice of intent to dismiss Lehman's petition and an order summarily dismissing the petition was entered. Lehman timely appealed, and in its 1925(a) opinion, the PCRA court reasoned that Lehman's counsel was not ineffective. See PCRA Court 1925(a) Opinion, 7/21/2021, at 4. The PCRA court determined that Lehman could qualify as an "inmate" or a "prisoner" because he was committed to Renewal against his will. See id.
Lehman now raises one claim in his appellate brief:
Appellant's Brief, at 4 (suggested answer omitted).Did the [PCRA] court abuse its discretion in denying the PCRA petition, as amended, without a hearing insofar as [Lehman] established the merits of the claim that the evidence was insufficient to sustain a conviction under 18 Pa.C.S. §5123(a.2), insofar as Mr. Lehman was not a "prisoner" or "inmate" at the time he unlawfully possessed a controlled substance; and prior counsel were ineffective for not raising this issue at trial or on appeal?
"The standard of review of an order dismissing a PCRA petition is whether that determination is supported by the evidence of record and is free of legal error." Commonwealth v. Cruz, 223 A.3d 274, 277 (Pa. Super. 2019) (quoting Commonwealth v. Weimer, 167 A.3d 78, 81 (Pa. Super. 2017)). "It is an appellant's burden to persuade us that the PCRA court erred and that relief is due." Commonwealth v. Stansbury, 219 A.3d 157, 161 (Pa. Super. 2019) (quoting Commonwealth v. Miner, 44 A.3d 684, 688 (Pa. Super. 2021)).
II.
Lehman's only issue in this appeal is whether the PCRA court erred in dismissing his ineffectiveness claim, which was predicated on counsel's failure to argue that Lehman could not be found guilty under Section 5123(a.2) as a matter of law due to his status as a parolee.
To assert a meritorious ineffectiveness claim, a petitioner must establish by a preponderance of the evidence that there is merit to the underlying legal claim, that there was no reasonable basis for counsel's conduct, and that the petitioner suffered prejudice. See generally Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). In this context, prejudice is a reasonable likelihood that but for counsel's deficient performance, the petitioner would have had a more favorable verdict. See Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011).
As to the underlying merit prong (which is the only prong now in dispute), Lehman contends that since he voluntarily resided at Renewal as a parolee and he was free to leave the premises (albeit in violation of parole), he could not qualify as a prisoner or inmate, precluding his conviction. The Commonwealth responds that a parolee may be treated as an inmate if the parolee has been "committed to" the custody of a halfway house.
To resolve this question of statutory interpretation, we begin by reviewing the plain language of Section 5123(a.2), which 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." "Inmate" is defined in 18 Pa.C.S. § 5123(e) as "a male or female offender who is committed to, under sentence to or confined in a penal or correctional institution." (Emphasis added).
As a community corrections center, Renewal indisputably qualifies as a correctional institution. See 61 Pa.C.S. § 5001. The parties also seem to agree that Lehman was not a "prisoner" or "confined" at the time of his overdose. The narrow issue here is whether a parolee may be considered an "inmate" for the purposes of Section 5123(e) by virtue of being "committed to" a halfway house.
Penal statutes 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. "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 phrases their common and approved usage." See Commonwealth v. Chesapeake Energy Corp., 247 A.3d 934, 942 (Pa. 2021).
The phrase "committed to" is not defined in 18 Pa.C.S. § 5123 or elsewhere in the Criminal Code; it is simply part of the definition of an "inmate." However, as employed in Section 5123 and other relevant statutes and taken in full context, "committed to" necessarily refers to a class of offenders held or incarcerated in correctional facilities against their will.
The word, "commit" describes the process of sending a person somewhere without the latter's consent. See COMMIT, Black's Law Dictionary (11th ed. 2019) ("To send (a person) to prison or to a mental health facility, esp. by court order.").
It is significant that Pennsylvania courts have long recognized that parolees "are not similarly situated with pre-release inmates" because parolees are "at liberty" rather than in official detention or incarceration. Meehan v. Pennsylvania Board of Probation and Parole, 808 A.2d 313, 317 (Pa. Cmwlth. 2002); see also 61 Pa.C.S. § 6138(2.3) ("A parolee is at liberty on parole when the parolee is residing at a community corrections center, community corrections facility or group-based home for purposes of this section.").
Accordingly, "parolees, who are at liberty on parole while at [a community corrections facility or center]" are a distinct class of offenders from "pre-release inmates, who are deemed to be in official detention, for purposes of credit for time spent at [a community corrections facility or center]." Commonwealth v. Davis, 852 A.2d 392, 397 (Pa. Super. 2004) (citing Meehan, 808 A.2d at 317) (emphasis added); Jackson v. Pennsylvania Board of Probation and Parole, 568 A.2d 1004 (Pa. Cmwlth. 1990) (same); see also Cox v. Pennsylvania Board of Probation and Parole, 493 A.2d 680 (Pa. Cmwlth. 1985) (same) (seminal case explaining that parolees are generally not entitled to credit time on a sentence while receiving in-patient drug treatment because the restrictions on liberty are not commensurate with incarceration.).
Community corrections centers are defined at 61 Pa.C.S. § 5001, which falls under Part III of the Prisons and Parole Code, titled "Inmate Confinement." However, this in no way suggests that the Legislature intended for all offenders housed in those facilities to be classified as inmates. Section 5003(1) provides that to be so housed, an offender must be, inter alia, "[a] parolee under the jurisdiction of the board who is in good standing with the board." When originally enacted, a provision in that same chapter stated further that an offender may be housed in a community corrections center or facility if he is an "inmate[] transferred by the department under Chapter 37 (relating to inmate prerelease plans)." 61 Pa.C.S. § 5003(5) (expired July 1, 2013). It can be inferred that the Legislature contemplated an "inmate" as an offender who is sent or "transferred" to a community corrections facility or center by the Department of Corrections, whereas a "parolee" is someone who qualifies for housing due to their good standing with the Parole Board. The definition of "parolee" makes no mention of action on the part of the Parole Board to transfer, send or commit a parolee to a community corrections facility, evidencing the choice of residence exercised by the parolee, whereas an inmate is not given that choice.
The rules and regulations establishing the parole system further support our conclusion that parolees are not "inmates" who are "committed to" a community corrections center. The Pennsylvania Board of Probation and Parole may place parolees in these centers when they are released from prison as a condition of parole - if they do not agree to go, then they continue serving their prison sentences. Parolees who violate a condition of parole by engaging in prohibited drug use may be sent to these centers for treatment.
Renewal is a community corrections center located in downtown Pittsburgh. As explained in Medina v. Pennsylvania Board of Probation and Parole, 120 A.3d 1116 (Pa. Cmwlth. 2015), and Harden v. Pennsylvania Board of Probation and Parole, 980 A.2d 691, 699 (Pa. Cmwlth. 2009), community corrections centers are operated by private entities under contract with the Pennsylvania Department of Corrections.
61 Pa. C.S. § 6101 sets forth two types of community based halfway houses. A "Community corrections facility" is a residential facility operated by a private contractor that: (1) provides housing to offenders pursuant to a contract with the department; and (2) is operated in accordance with Chapter 50. A "Community corrections center" is defined as [a] residential program that is supervised and operated by the department [of corrections] in accordance with Chapter 50 (relating to community corrections centers and community corrections facilities.).
As a matter of law, a parolee may only reside at Renewal or any community corrections center pursuant to a parole agreement, which is a contract wherein a parolee accepts conditions, subject to stipulated consequences in the event that those conditions are violated. See 37 Pa. Code § 65.7 ("The parole agreement shall contain the parole number, date and signature of the parolee.") (Emphasis added); see also id. at § 65.6(2) (providing that "[e]very parolee shall acknowledge . . . [t]hat he fully understands the conditions of his parole and agrees to follow such conditions."). In sum, a parole agreement does not exist unless the parolee has willingly accepted its terms. See id.
Once a parole agreement has been executed, the parolee "shall remain in the legal custody of the [P]arole Board until the expiration of his maximum sentence, or until he is legally discharged." Id. at § 63.2. If the parolee violates the agreed-upon terms during the parole period, the Parole Board "may cause his detention or return to a correctional institution." Id. at § 63.3.
In this case, Lehman was not, as the PCRA court presumed, residing at Renewal against his will. He was at Renewal pursuant to an agreed-upon parole condition. If Lehman wished, he could have left to serve out the remainder of his sentence in prison. Lehman's option to leave Renewal, his statutory status as a "parolee at liberty on parole," and the absence of his right to accrue credit time against his sentence while staying there, made it impossible for Lehman to qualify as an "inmate" for the purposes of Section 5123.
Had Lehman's trial counsel sought to have the contraband charge dismissed on the ground that he was not an inmate, there is a reasonable likelihood that the argument would have succeeded, resulting in the dismissal of the charge. Accordingly, the PCRA court abused its discretion in dismissing Lehman's ineffectiveness claim.
Assuming that the definition of an inmate or prisoner is ambiguous under 18 Pa.C.S. § 5123(a.2), Lehman would be entitled to relief under the Rule of Lenity. Under that rule, "any ambiguity in a criminal statute will be construed in favor of the defendant. The rule of lenity requires a clear and unequivocal warning in language that people generally would understand, as to what actions would expose them to liability for penalties and what the penalties would be." Richards v. Pennsylvania Board of Probation and Parole, 20 A.3d 596, 600 (Pa. Cmwlth. 2011); see also Commonwealth v. Simmons, 262 A.3d 512, 516 (Pa. Super. 2021) (en banc) ("Moreover, while statutes generally should be construed liberally, penal statutes are always to be construed strictly, 1 Pa.C.S. § 1928(b)(1), and any ambiguity in a penal statute should be interpreted in favor of the defendant."). Thus, we must give Lehman the benefit of any lack of statutory clarity concerning whether he was an "inmate" who was "committed to" a community corrections center at the time of his overdose.
III.
We conclude our analysis by writing separately in response to certain matters raised in the dissent.
The core of the dissent is its disagreement with the majority that Lehman was not "committed to" Renewal because he was there as a voluntary condition of parole. Not accepting Black's Law dictionary of the term, the dissent instead cites definitions of "commit" found in the Merriam-Webster Dictionary. However, these definitions do not, as the dissent contends, demonstrate that there is a voluntary aspect to being "committed to" a correctional institution under Section 5123(a.2). In fact, of the five definitions provided, the one closest in context to the present circumstances is "3b," and its examples of usage (provided below but omitted by the dissent) highlight the involuntary nature of being "committed to" a prison or a community corrections center:
[3]b: to place in a prison or mental institution
// The patient was committed by the court to a mental hospital.
// He was committed to the state penitentiary for 10 years[.] https://www.merriam-webster.com/dictionary/commit (definition 3) (last visited May 18, 2022) (emphasis in original).
Even if there was a whiff of validity in the dissent's interpretation of Section 5123(a.2), the Rule of Lenity would preclude us from adopting it. This fundamental tenet of statutory construction, which the dissent ignores, requires courts to construe ambiguous terms in the way that avoids imposition of a penal sanction. Under the dissent's own analysis of whether Lehman was a parolee or an inmate under Section 5123(a.2), the phrase, "committed to" may be susceptible to multiple meanings, including the one favorable to Lehman. Thus, if there was any ambiguity in these disputed terms, then they would have to be construed in Lehman's favor.
Moreover, the dissent's reliance on Commonwealth v. Cornelius, 180 A.3d 1256 (Pa. Super. 2018), is equally unavailing because it involves completely different facts and speaks to points of law that are not now at issue. In Cornelius, the defendant was a parolee who was arrested at his home for a parole violation. Authorities later discovered during jail intake that the defendant had contraband hidden on his person. On appeal, the defendant conceded that he "was in fact confined" at a jail, but he argued in relevant part that he was not yet an "inmate" during the intake processing stage. This Court held that the defendant could be found guilty of violating Section 5123(a.2) because upon his arrest and transfer to jail, he qualified as an "inmate" who was "committed to" the custody of a correctional institution:
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.
180 A.3d at 1261 (emphasis added).Accordingly, that is when he first became an inmate of the jail as defined under subsection 5123(e).
The material distinctions between Cornelius and this case are obvious. The defendant in Cornelius was handcuffed and arrested for violating parole and then taken to a jail against his will, at which point he was found to have possessed contraband. It was only after being arrested, handcuffed, transported and surrendered to a jail for processing that "he first became an inmate of the jail as defined under subsection 5123(e)." Id. By clear implication, the defendant was a parolee and not an inmate prior to those events. Here, Lehman went to Renewal voluntarily as a condition of parole and as a parolee. Cornelius would only apply here if Lehman's contraband possession had occurred after a parole violation, an involuntary arrest and a transport to a jail. Here, those are not our facts.
Finally, the dissent questions the import of recent revisions to statutes concerning the rights and legal status of a parolee. The majority cited 61 Pa.C.S. § 6138(2.3) for the proposition that parolees are "at liberty on parole" and not in official detention when serving probation. Although the dissent is correct about the timing of the statute's amendment, it must be noted that this statute did not come out of the blue; it is a codification of long recognized distinctions between parolees and inmates. See Meehan, 808 A.2d at 317. It is also a clarification of statutory provisions already in force at the time of Lehman's arrest which presupposed that, prior to recommitment upon a parole violation, a parolee remained "at liberty on parole." See e.g., 61 Pa.C.S. § 6138(2.1) (effective January 2, 2013 to December 17, 2019).
The legislative intent behind the most recent enactment of Section 6138(2.1) is further evidenced by other revisions to relevant statutes, including 61 Pa.C.S. § 5006 (effective June 30, 2021), which provides that a parolee living in a community corrections center "while in good standing on parole shall not be deemed to be in official detention under 18 Pa.C.S. § 5121." Because this statute definitively precludes parolees today from being treated as inmates under 18 Pa.C.S. § 5123(a.2), the dissent's interpretation would impose criminal liability on Lehman for acts, even under its view, which are no longer criminalized. This approach is not warranted in the instant case because, again, the above-mentioned amendments are merely further recognition of statutes and decisional law which were in force at the time of Lehman's overdose. See Davis, 852 A.2d at 397; Meehan, 808 A.2d at 317.
The dissent complains that the majority is advancing positions not articulated by Lehman and relying on facts not of record. What that ignores, and as mentioned previously, is 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 like Renewal were "inmates" or "prisoners" under the contraband statute. Since Lehman's counsel had not raised the issue, its merits could not be reached at that point. Lehman's PCRA petition arose directly from that concern. With respect to the record facts, it is undisputed that Lehman was a parolee at all relevant times, that he had a valid parole agreement, and that he agreed to reside at Renewal as a condition of parole. The dissent even notes that Lehman "opted to agree to the conditions of his parole" and that "he voluntarily" resided at Renewal. Thus, the majority's review in this appeal is limited to the issues presented and facts which are not in dispute.
Order vacated. Case remanded. Jurisdiction relinquished.
President Judge Emeritus Bender joins the opinion.
Judge Bowes files a dissenting opinion.
DISSENTING OPINION
BOWES, J.
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 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
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:
18 Pa.C.S. § 5123."Inmate." A male or female offender who is committed to, under sentence to or confined in a penal or correctional institution.
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 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 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 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). Indeed, the Majority recognizes that parolees may reside in community correction centers alongside prerelease inmates in need of drug treatment who are undeniably in official detention at the facility. See Majority Opinion at 7.
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).
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 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. Id. at 7, 15-16.
The 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 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.
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:
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 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." 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.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.
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."
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 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 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.
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.
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
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
https://www.merriam-webster.com/dictionary/commit (definition 3) (last visited May 6, 2022).e: to refer (something, such as a legislative bill) to a committee for consideration and report
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 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:
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.,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.
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."
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. 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.
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), 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 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.
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.
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.").
For these reasons, I respectfully dissent.
[*] Retired Senior Judge assigned to the Superior Court.