COMMONWEALTH OF PENNSYLVANIA v. DAVID KENNETH ARNOLD
No. 38 WDA 2022
IN THE SUPERIOR COURT OF PENNSYLVANIA
October 20, 2022
2022 PA Super 185
BEFORE: BENDER, P.J.E., DUBOW, J., and KING, J.
J-S25014-22; Appeal from the Judgment of Sentence Entered October 21, 2021 In the Court of Common Pleas of Butler County Criminal Division at No(s): CP-10-CR-0000268-2020
FILED: October 20, 2022
Appellant, David Kenneth Arnold, appeals from the judgment of sentence of an aggregate term of 2-4 years’ incarceration, imposed after a jury found him guilty under two provisions of the contraband statute
respect to the Contraband Offense. Otherwise, we affirm with respect to Appellant‘s conviction for the Possession Offense.
Unfortunately, the trial court did not provide a summary of the facts adduced at Appellant‘s September 22, 2021 jury trial in its Pa.R.A.P. 1925(a) opinion. The following factual summary was provided by Appellant in his Statement of Case:2
On January 22, 2020, Appellant was detained by Butler County Adult Probation for a violation and was subsequently committed to the Butler County Prison. Appellant was taken into the Butler County Prison and placed into a holding cell in the main processing/intake area. While in processing[,] Appellant was searched by the corrections officers. Appellant is a severe hemophiliac and is an []above-the-knee[] amputee who has a prosthetic leg. Appellant‘s prost[he]tic leg has a foot which he outfits with a sock and shoe. Appellant has no feeling below the knee. At the time of his detention, Appellant possessed a valid
prescription for Suboxone3 and used that controlled substance as part of his addiction therapy.4
While in the processing department of the Butler County Prison, Appellant was subject to search. Correction‘s Officer Summerville searched Appellant. Appellant undressed and removed his prosthetic leg willingly and voluntarily. Officer Summerville removed the shoe and sock and located a piece of folded paper which contained a single white pill. The pill was confiscated and later identified as a schedule III-controlled substance.5 Appellant denied specific knowledge of the single pill[‘]s presence and indicated he []forgot[] it was there. He testified at trial to the sequence of events that
led him to forget such item, which included the overdose death of his son‘s mother, the loss of his son to [Children and Youth Services], as well as his prescription medications being stolen on prior occasions.6 Appellant could not feel the pill in his sock/shoe due to the amputation and
completely forgot about its presence. The pill was confiscated by the Corrections Officer and ultimately became the subject of the ... Contraband [Offense].
Appellant was then committed to the Butler County Prison from the processing department, given his prosthetic leg back, and issued a prison wheelchair. Appellant was strip searched on[] at least[] two occasions[,] with no other items of contraband being located. Appellant was detained at the Butler County Prison awaiting his probation violation hearing. On or about January 27, 2020, corrections officers searched Appellant‘s prison cell at the Butler County Prison. While Appellant was taking a shower, corrections officers noticed food items within his cell. Keeping food past mealtime is considered a misconduct per Butler County Prison rules. So, the corrections officers conducted a complete cell search. Nothing was found inside Appellant‘s cell. However, Appellant‘s prison[-]issued wheelchair was outside of his assigned cell when Correction Officer McClelland noticed a []small hole[] in the wheelchair. Officer McClelland and Officer Wingrove searched the wheelchair. In fact, they completely disassembled the wheelchair down to its component parts and cut apart the seat. The wheelchair was destroyed in the process. Upon disassembly, the officers found three (3) pieces of waxy tape paper, orange in color, and a fingertip portion of a rubber glove which contained []a brown substance[] inside of it. Officers confronted Appellant[,] who completely denied having contraband or hiding anything within the wheelchair. The items found within the wheelchair were confiscated and Appellant was ultimately charged with [the Possession Offense].7
Appellant‘s Brief at 14-17.
The parties agree to the following recitation of the procedural history of this case:
On September 22, 2021, following trial, a jury convicted [Appellant] ... of [the Contraband Offense and the Possession Offense]. The Honorable Timothy F. McCune sentenced Appellant on October 21, 2021, to an aggregate term of not less than
twenty-four (24) months and not more than forty-eight (48) months in state prison. The sentence imposed is mandatory as provided for [by Section 5123(a.1), which states] that “[a]ny person convicted of subsection (a) shall be sentenced to a minimum sentence of at least two years of total confinement, notwithstanding any other provision of this title or any other statute to the contrary.” Appellant was also sentenced on [the Possession Offense] to a period of total confinement of twelve (12) to twenty-four
On October 27, 2021, Appellant filed a post-sentence motion. Appellant sought [j]udgment of [a]cquittal on both charges[,] raising and preserving the various constitutional challenges contained herein.
Appellant also sought a [n]ew [t]rial preserving the various arguments regarding insufficient evidence and weight given to support Appellant‘s convictions on both charges. Following oral arguments, the trial court denied Appellant‘s post-sentence motion on December 30, 2021.
[A n]otice of appeal was filed on January 6, 2022.8
Appellant‘s Brief at 13-14 (citation omitted). Appellant filed a timely, court-ordered Rule 1925(b) statement on January 27, 2022. The trial court issued its Rule 1925(a) opinion on March 3, 2022.
Appellant now presents the following questions for our review:
- Whether the trial court abused its discretion, or erred as a matter of law, when it denied Appellant‘s motion for judgment of acquittal on the Contraband [Offense] where Appellant ar[gu]ed [the] statute and associated jury instructions [are] unconstitutional and violative of his fund[a]mental right to due process as secured by the constitutions of the United States and this Commonwealth?
- Whether the trial court abused its discretion, or erred as a matter of law, when it denied Appellant‘s motion for judgment of acquittal or new trial on the ... Possession [Offense] where Appellant uncontrovertibly testified that he did not knowingly or actually possess such items in a prison issued wheelchair?
- Whether the Commonwealth presented insuffic[i]ent evidence to sustain the convictions against Appellant?
Appellant‘s Brief at 12 (unnecessary capitalization omitted).
I.
In his first claim, Appellant asserts that the Contraband Offense, and the related
upheld its constitutionality despite the ostensible absence of a scienter element. See TCO at 2-3.
For the reasons that follow, and contrary to the trial court‘s analysis, we hold that the Contraband Offense, Section 5123(a), contains a default mens rea of recklessness, provided by
“As the constitutionality of a statute is a pure question of law, our standard of review is de novo and our scope of review is plenary.” Commonwealth v. Omar, 981 A.2d 179, 185 (Pa. 2009). We are further mindful of the following standards when reviewing the constitutionality of a statute:
When interpreting a statute, the court must ascertain and effectuate the intent of the legislature and give full effect to each provision of the statute if at all possible.
1 Pa.C.S. § 1921(a) ; Commonwealth v. Brown, 620 A.2d 1213, 1214 (Pa. Super. 1993); Commonwealth v. Edwards, 559 A.2d 63, 66 (Pa. Super. 1989).... In construing a statute to determine its meaning, courts must first determine whether the issue may be resolved by reference to the express language of the statute, which is to be read according to the plain meaning of the words.1 Pa.C.S. § 1903(a) . See Commonwealth v. Berryman, 649 A.2d 961, 965 (Pa. Super. 1994) (en banc).When construing one section of a statute, courts must read that section not by itself, but with reference to, and in light of, the other sections because there is a presumption that in drafting the statute, the General Assembly intended the entire statute to be effective.
1 Pa.C.S. § 1922 . See Commonwealth v. Mayhue, 639 A.2d 421, 439 (Pa. 1994); Berryman, 649 A.2d at 965. Statute headings may be considered in construing a statute.1 Pa.C.S. § 1924 . However, the letter of the statute is not to be disregarded under the pretext of pursuing its spirit.1 Pa.C.S. § 1921(b) ; Commonwealth v. Reeb, 593 A.2d 853, 856 (Pa. Super. 1991)....
Commonwealth v. Lopez, 663 A.2d 746, 748 (Pa. Super. 1995).
It is axiomatic that: “[A]ny party challenging the constitutionality of a statute must meet a heavy burden, for we presume legislation to be constitutional absent a demonstration that the statute ‘clearly, palpably, and plainly’ violates the Constitution.” Konidaris v. Portnoff Law Associates, Ltd., 953 A.2d 1231, 1239 (Pa. 2008) (citation omitted). The presumption that legislative enactments are constitutional is strong. Commonwealth v. McMullen, 961 A.2d 842, 846 (Pa. 2008); see also
1 Pa.C.S. § 1922(3) ([stating that,] in ascertaining intent of General Assembly in enactment of statute, presumption exists that General Assembly did not intend to violate federal and state constitutions). All doubts are to be resolved in favor of finding that the legislative enactment passes constitutional muster. Pennsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth, 877 A.2d 383, 393 (Pa. 2005). Moreover, “statutes are to be construed whenever possible to uphold their constitutionality.” In re William L., 383 A.2d 1228, 1231 (Pa. 1978).
Commonwealth v. Presher, 179 A.3d 90, 92 (Pa. Super. 2018); see also DePaul v. Commonwealth, 969 A.2d 536, 545-46 (Pa. 2009).
As this Court has previously stated, “the concept of due process” includes “a degree of protection against the imposition of criminal liability without criminal intent on the part of the actor.” Commonwealth v. Heck, 491 A.2d 212, 219 (Pa. Super. 1985). However, this protection is not absolute; “in certain cases[,] mens rea may be dispensed with completely if the legislative intention is to create a strict liability crime.” Id.
In determining whether the legislature intends to create a strict liability offense, the United States Supreme Court has reasoned that a criminal statute‘s silence as to a scienter requirement
by itself does not necessarily suggest that Congress intended to dispense with a conventional mens rea element, which would require that the defendant know the facts that make his conduct illegal.
On the contrary, we must construe the statute in light of the background rules of the common law, see United States v. United States Gypsum Co., 438 U.S. 422, 436–437 (1978), in which the requirement of some mens rea for a crime is firmly embedded. As we have observed, “[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.” Id. at 436 (internal quotation marks omitted). See also Morissette v. United States, 342 U.S. 246, 250 (1952) (“The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil[.]“).
Staples v. U.S., 511 U.S. 600, 605 (1994) (some internal citations omitted). Despite this general reliance “on the strength of the traditional rule,” the Stapes Court did not hold that the absence of mens rea requirement in criminal statutes is always unconstitutional. Id. at 606. Instead, the Court advised that “offenses that require no mens rea generally are disfavored,” and that “some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime.” Id.
Likewise, the Pennsylvania Supreme Court has recognized that “absolute liability criminal offenses are generally disfavored[] and, absent indicia of legislative intent to dispense with a mens rea, a statute will not be held to impose strict liability.” Commonwealth v. Moran, 104 A.3d 1136, 1149 (Pa. 2014) (quotation marks omitted). Nevertheless, the Moran Court recognized a limited exception to the general rule disfavoring strict liability offenses:
Although the imposition of strict liability is generally disfavored, this Court has recognized the legislature may create statutory offenses dispensing with a mens rea in fields that are essentially non-criminal in order “to utilize the machinery of criminal administration as an enforcing arm for social regulations of a purely civil nature, with the punishment totally unrelated to questions of moral wrongdoing or guilt.” Commonwealth v. Koczwara, 155 A.2d 825, 827–28 (Pa. 1959). The penalty for such offenses concerning the public welfare is generally relatively light. Id. at 827.
Pennsylvania‘s statutory scheme for criminal offenses clearly reflects the traditional rule of criminal jurisprudence as described in Staples and Moran. Our General Assembly expressed its preference for mens rea requirements in Section 302(a) of Title 18, stating: ”Minimum requirements of culpability.--Except as provided in section 305 of this title (relating to limitations on scope of culpability requirements), a person is not guilty of an offense unless he acted intentionally, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.”
The comment to [Section] 302 also supports this conclusion, providing:
The purpose of this section is to clearly define the various mental states upon which criminal liability is to be based. Under existing law the words “wilfully” or “maliciously” are used in many cases. However, these words have no settled meaning. In some instances there is no expressed requirement concerning the existence of mens rea. These defects in existing law are remedied by this section which sets forth and defines the culpability requirements and eliminates the obscurity of the terms “malice” and “wilful.”
18 Pa.C.S. § 302 cmt. (emphasis added) (internal citations omitted).14
The Contraband Offense, as recognized by the trial court, does not contain an explicit mens rea:
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.
As the Staples Court advised, the absence of an express mens rea in a criminal statute does not alone demonstrate a legislature‘s intent to impose strict liability for a crime, given that principles of due process generally favor a scienter requirement for criminal offenses. See Staples, 511 U.S. at 605. And, in Moran, the Pennsylvania Supreme Court held that the omission of a mens rea from the definition of a criminal offense instead implies that a defect exists in the statute that is remedied by Section 302. Moran, 104 A.3d at 1149-50. Section 302(a) expresses the General Assembly‘s own preference against strict liability in the Crimes Code, and Section 302(c) explicitly provides a mens rea when it is otherwise absent from the definition of a crime.
Thus, while due process permits the General Assembly to create strict liability offenses as exceptions to the general rule, we ascertain no intent to do so here merely from the legislature‘s failure to include an explicit scienter element within the text of Section 5123(a). What Section 5123(a) omits, Section 302(c) provides. Moreover, our rationale in rejecting the trial court‘s conclusion that the Contraband Offense is a strict liability offense is further buttressed by the fact that Section 5123(a) is defined in the Crimes Code, and carries with it a mandatory minimum sentence of two years’ incarceration. Therefore, it does not resemble an “essentially non-criminal” offense with a “relatively light” penalty, for which strict liability offenses are sometimes permissible. Moran, 104 A.3d at 1149.
Additionally, our review of the authorities cited by the trial court reveals that none of the cases cited by the court suggested, much less held, that Section 5123(a) is a strict liability offense. In Commonwealth v. Williams, 579 A.2d 869 (Pa. 1990), for instance, our Supreme Court considered whether “the mere possession of marijuana by a visitor to a prison, absent an intent to deliver the substance to persons confined there, constitutes a violation of [Section] 5123(a).” Id. at 870 (emphasis added). The lower courts had interpreted the phrase, “for the use and benefit of the prisoners or inmates,” as used in the Contraband Offense, to mean “that criminal liability does not attach unless the purpose of bringing the substance into the prison was ‘for the use and benefit of the prisoners or inmates.‘” Id. (quoting
In Commonwealth v. Olavage, 894 A.2d 808 (Pa. Super. 2006), also cited by the trial court, Olavage was convicted of the Contraband Offense for reentering a prison, at the end of his work-release shift, with methamphetamine in his possession. Id. at 810. He raised four claims, two of which concerned whether he had been subjected to selective prosecution by the Commonwealth. Id. at 811. In his third claim, Olavage argued that his violation of Section 5123(a) should have been deemed a de minimus infraction by the trial court, citing Williams. Id. at 812.11 In his fourth and final claim, Olavage asserted “that it was not the intent of the Legislature for the mandatory minimum sentence to apply to a [Section] 5123(a) conviction based upon bringing contraband into a prison.” Id.12 None of the issues addressed in Olavage concerned whether Section 5123(a) was a strict liability offense.
The last case cited by the trial court was Commonwealth v. Sarvey, 199 A.3d 436 (Pa. Super. 2018), a collateral appeal from Sarvey‘s numerous drug convictions stemming from her possessing a bag of prohibited pills in prison and delivering “one-half of a tablet of Oxycodone and one tablet of []Ambien[] to another inmate.” Id. at 443. The Contraband Statute is only briefly discussed in Sarvey in the Court‘s analysis of the claim that Sarvey‘s sentence for that offense should have merged with her sentence for possession with intent to deliver (“PWID“),
Consequently, for the above reasons, we conclude that the trial court erred in finding that the Contraband Offense imposes strict liability due to a lack of an express mens rea in the text of Section 5123(a). Because that provision does not prescribe the “culpability sufficient to establish a material element of [the] offense[,]” Section 302(c) provides a minimum mens rea of recklessness.
However, Appellant requested an “ignorance or mistake” jury instruction as to both the Contraband and Possession Offenses, arguing that he had presented evidence (his testimony) that negated the mens rea of both offenses, contending with respect to the Contraband Offense that he did not possess knowledge that the Subutex pill was in his possession at the time he entered the prison, or that “he was reasonably ignorant or mistaken concerning the fact that he possessed [it].” See N.T. Trial at 111. The court ultimately refused the instruction for the Contraband Offense based on its erroneous conclusion that Section 5123(a) had no mens rea. Id. at 114 (“Doesn‘t seem to be a mens rea of knowing in that crime. It does seem to be a strict liability crime.“). Defense counsel noted that the court‘s refusal to issue the instruction would become an appellate issue, and further argued that every offense involving the possession of a controlled substance has a mens rea element pertaining to the accused‘s knowledge that he or she possessed the substance in question. See id. at 115. Appellant now maintains on appeal that the jury instruction issued by the trial court was constitutionally infirm due to the omission of a scienter element, thereby depriving the jury “of the ability to consider any evidence from [Appellant] as to [his] state of mind....” Appellant‘s Brief at 36. Appellant argues that the “jury instruction is violative of his fundamental right to ... due process” under the Pennsylvania and United States Constitutions. Id. at 37.
After the trial court denied Appellant‘s request for an ignorance/mistake jury instruction as to the Contraband Offense, the prosecutor argued to the jury that, “as far as [the Contraband Offense] is concerned, you are not going to hear from the Judge that [Appellant] had to have knowledge that he was bringing it into the prison.” N.T. Trial at 125. The prosecutor further stated:
It doesn‘t matter if [Appellant] knew he was doing it or not. That only comes into count on [the Possession Offense]. So, when you are deliberating, the Judge is going to instruct you to follow the law as he gives it to you. You may want to read a knowing element into it. You might
think that‘s harsh. But that is the law. And you have sworn an oath to follow that.
Id.
The trial court‘s subsequent instruction to the jury regarding the Contraband Offense omitted any mention of mens rea:
To find the defendant guilty of this offense, you must find the following elements have been proven beyond a reasonable doubt. First, that the defendant brought into a prison owned by the County of Butler controlled substances so classified under Pennsylvania law. I instruct you that buprenorphine hydrochloride and Suboxone are controlled substances. And second, that the defendant did so with without written permit signed by the physician of the prison.
Id. at 137. Because neither of these elements had been disputed at trial, the trial court effectively instructed the jury to convict Appellant regardless of his testimony that he forgot that the pill was still in the sock of his prosthetic leg when he entered the prison. That testimony spoke directly to the mens rea for the Contraband Offense. This jury-instruction error resulted from the trial court‘s misreading of Section 5123(a) as a strict liability offense, and its related failure to apply the default mens rea mandated by Section 302(c). This error prejudiced Appellant, as he only proffered a defense to the Contraband Offense based on his claim that he was unaware that he had brought the Subutex pill into the prison. While the jury was ultimately free to disbelieve Appellant‘s testimony in that regard, the jury was relieved of the responsibly of making that credibility determination due to the trial court‘s constitutional error in issuing a jury instruction on the Contraband Offense without a mens rea element.
Although Appellant directs much of his argument toward the constitutionality of the standard jury instructions for the Contraband Offense, which does not contain a mens rea element, he does so premised on the trial court‘s strict-liability interpretation of Section 5123(a). However, we ascertain no defect in the standard Section 5123(a) jury instruction. The constitutional defect in this case stemmed not from the court‘s reading the standard instruction for that offense to the jury but, instead, from the trial court‘s omission of an accompanying instruction relaying the default mens rea from Section 302(c) and/or from the trial court‘s failure to issue an ignorance/mistake jury instruction given the nature of Appellant‘s testimony.
Because of the trial court‘s error in issuing a jury instruction for Section 5123(a) without also defining the default mens rea provided by Section 302(c), Appellant is entitled to a new trial for that offense. See Commonwealth v. Woosnam, 819 A.2d 1198, 1206–07 (Pa. Super. 2003) (granting a new trial due to trial court error in effectively making leaving the scene of an accident involving death or personal injury “a strict liability crime[,]” where the court erroneously “refused to instruct the jury that the Commonwealth had any burden of proving any amount of knowledge on Appellant‘s part that she was involved in an accident involving death or injury[,]” which “removed from the jury‘s consideration the only defense presented by [the a]ppellant and virtually instructed the jury to find in favor of the Commonwealth“).
II.
Next, Appellant claims that the trial court abused its discretion when it denied his post-sentence motion for judgment of acquittal on the Possession Offense, contending that relief was warranted because Appellant “uncontrovertibly testified that he did not knowingly possess any items of contraband found within [the]
Appellant‘s claim asserts a challenge to the weight of the evidence supporting his conviction for the Possession Offense, which he preserved for our review in his post-sentence motion. See Post-Sentence Motion, 10/27/21, at 4-5 ¶¶ 28-36 (unnumbered pages).
The weight given to trial evidence is a choice for the factfinder. If the factfinder returns a guilty verdict, and if a criminal defendant then files a motion for a new trial on the basis that the verdict was against the weight of the evidence, a trial court is not to grant relief unless the verdict is so contrary to the evidence as to shock one‘s sense of justice.
When a trial court denies a weight-of-the-evidence motion, and when an appellant then appeals that ruling to this Court, our review is limited. It is important to understand we do not reach the underlying question of whether the verdict was, in fact, against the weight of the evidence. We do not decide how we would have ruled on the motion and then simply replace our own judgment for that of the trial court. Instead, this Court determines whether the trial court abused its discretion in reaching whatever decision it made on the motion, whether or not that decision is the one we might have made in the first instance.
Moreover, when evaluating a trial court‘s ruling, we keep in mind that an abuse of discretion is not merely an error in judgment. Rather, it involves bias, partiality, prejudice, ill-will, manifest unreasonableness or a misapplication of the law. By contrast, a proper exercise of discretion conforms to the law and is based on the facts of record.
Commonwealth v. West, 937 A.2d 516, 521 (Pa. Super. 2007) (citations omitted).
Here, the trial court determined that the verdict was not against the weight of the evidence, noting that the jury “chose to believe the testimony of the Commonwealth‘s witnesses and reached the conclusion that [Appellant] did possess or have under his control the” Suboxone sublingual film found in the wheelchair. TCO at 3. Furthermore, the Commonwealth argues:
[Appellant]‘s claim here must fail because the jury, in convicting him of [the] Possession [Offense], incontrovertibly did not believe [his] testimony that he did not possess the Suboxone [s]trips. The jury, as finder of fact, while making determinations of witness credibility and the weight of the evidence, is free to believe all, part, or none of the evidence. Commonwealth v. Cousar, 928 A.2d 1025, 1032 (Pa. 2007). As discussed, supra, regarding the sufficiency of the evidence for [the] Possession [Offense],13 the
Commonwealth did indeed
Commonwealth‘s Brief at 22.
We agree with the Commonwealth‘s analysis, and we ascertain no abuse of discretion by the trial court in denying Appellant‘s weight-of-the-evidence claim.
III.
In his third and final claim, Appellant argues that the Commonwealth “presented insufficient evidence to sustain the convictions against Appellant.” Appellant‘s Brief at 49. Appellant‘s argument in support of this claim comprises only half of a page, in which he incorporates his arguments regarding his first two claims. Id.
The trial court deemed this issue waived, as Appellant “fail[ed] to ‘specify how the evidence failed to establish which element or elements of the two offenses for which he was convicted‘” in his Rule 1925(b) statement. TCO at 4 (quoting Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008)). Indeed, in the Rule 1925(b) statement, Appellant stated the question: “Whether the Commonwealth presented sufficient evidence to sustain the convictions against [Appellant]?” Pa.R.A.P. 1925(b) Statement, 1/27/22, at 1 ¶ 3. The trial court did not address the claim on the merits due to this deficiency. See TCO at 4. We note that Appellant does not address the trial court‘s finding of waiver in his brief to this Court. Furthermore, Appellant was instructed in the trial court‘s order directing him to file a Rule 1925(b) statement that: “Any issue not properly included in the Statement shall be deemed waived[,]” Order, 1/19/22, at 1, echoing the text of Rule 1925, which provides that: “Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived[,]” Pa.R.A.P. 1925(a)(4)(vii).
It is well-established that any issue not raised in a Rule 1925(b) statement will be deemed waived for appellate review. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).
Further, an appellant‘s concise statement must identify the errors with sufficient specificity for the trial court to identify and address the issues the appellant wishes to raise on appeal. See Pa.R.A.P. 1925(b)(4)(ii) (requiring a Rule 1925(b) statement to “concisely identify each ruling or error that the appellant intends to challenge with sufficient detail to identify all pertinent issues for the judge“). This Court explained in Riley v. Foley, 783 A.2d 807, 813 (Pa. Super. 2001), that Pa.R.A.P. 1925 is a crucial component of the appellate process because it allows the trial court to identify and focus on those issues the parties plan to raise on appeal. A Rule 1925(b) concise statement that is too vague can result in waiver of issues on appeal. See Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa. Super. 2001) ([stating that] “a concise statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no concise statement at all“).
If [an a]ppellant wants to preserve a claim that the evidence was insufficient, then the 1925(b) statement needs to specify the element or elements upon which the evidence was insufficient. This Court can then analyze the element or elements on appeal. [Where a] 1925(b) statement [] does not specify the allegedly unproven elements[,] ... the sufficiency issue is waived [on appeal].
Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super. 2015) (citation omitted); Commonwealth v. Bonnett, 239 A.3d 1096, 1106 (Pa. Super. 2020), appeal denied, 250 A.3d 468 (Pa. 2021).
We agree with the trial court that Appellant‘s third claim in his Rule 1925(b) statement was too vague and, therefore, waived. See id. (holding that the appellant waived his sufficiency claim due to lack of specificity in his Rule 1925(b) statement where he had only provided “a blanket statement wherein he declares the evidence was insufficient to convict him of all charges“).
Conclusion
In sum, we affirm Appellant‘s judgment of sentence for the Possession Offense, having deemed his second claim meritless, and his third claim waived. However, we vacate Appellant‘s judgment of sentence for the Contraband Offense, and remand for a new trial in accordance with this Opinion.
Judgment of sentenced affirmed in part and vacated in part. Case remanded for a new trial. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2022
Notes
Id. at 871.The legislative purpose in enacting
18 Pa.C.S. § 5123(a) was obviously to prevent the acquisition of contraband substances by persons confined in prisons and mental hospitals. Although this purpose would be served to some extent by prescribing punishment for persons who bring contraband substances into institutions with the intention of transferring them to prisoners or inmates, there would still be a risk, perhaps a substantial one, that substances brought into institutions without such an intent might still fall into the hands of such persons. We believe that, in recognition of this risk, and in response to the need to address the serious problems posed by infiltration of contraband substances into institutional settings, the legislature chose to employ comprehensive language that made the offense not dependent upon whether a person bringing contraband substances into such a setting did so with the intention of transferring them to the use of persons confined there.
Commonwealth‘s Brief at 20.[i]n closing, the Commonwealth submitted to the jury that [Appellant] likely smuggled the Suboxone strips into the prison in his rectum (see [N.T. Trial at] 127), a theory supported by the circumstantial evidence. Both Officers McClelland and Wingrove testified that they observed a distinct fecal matter smell, both on the wheelchair and on the baggie containing the Suboxone strips. [Id. at 45-46]. In addition, Detective John Johnson of the Butler County District Attorney‘s office, the affiant in this case, testified that a blue piece of plastic (Commonwealth‘s Ex. “6“) recovered during the wheelchair search resembled the finger tip of a plastic glove. [Id. at 54]. Detective Johnson explained that this type of evidence is common in contraband cases, where the accused will place contraband in the tip of a plastic glove, tie it off, and insert it into a bodily cavity or swallow it, thereby avoiding detection of the contraband during a cursory strip search. Id.