J-S64019-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JARAY PELIER,

Appellant No. 284 MDA 2017

Appeal from the Judgment of Sentence December 19, 2016

In the Court of Common Pleas of Lackawanna County

Criminal Division at No(s): CP-35-CR-0002461-2015

BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 08, 2017

Appellant, Jaray Pelier, appeals from the judgment of sentence entered 

on December 19, 2016, in the Lackawanna County Court of Common Pleas. 

We affirm.

The relevant facts of this matter were set forth by the trial court as 

follows:

On November 5, 2015, Officers William Golden and James 

Sheerin of the Scranton Police Department were on patrol in 

North Scranton. (N.T.5/16/16 at pg. 37). The officers are part of 

the street crime unit, patrolling in an unmarked car and in plain 

clothing. Id[.] at 39. At approximately 2:00 p.m. they observed 

[Appellant] standing outside of a red Mercedes which was parked 

in the Sunoco parking lot in the 1700 block of North Main 

Avenue. Id[.] at 38. He was speaking to two males.1Id[.] Officer 

Golden observed the red Mercedes drive away and [Appellant] 

____________________________________________

*

 Former Justice specially assigned to the Superior Court.
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walk back to his vehicle and get into the driver’s seat. Id[.] at 

40. The officers approached and parked their vehicle with Officer 

Golden exiting wearing a visible police vest. Id[.] at 41. He 

observed [Appellant] operating a Global Positioning System 

(GPS). Id. [Appellant] said “What’s up?” Id. at 42. The Officer 

responded by asking if [Appellant] needed help. Id. [Appellant]

said he did not need help, [and] he was heading back to 

Allentown where he lived. Id. The Officer asked [Appellant] if he 

lived in Allentown. Id. [Appellant] then said no, he lived in 

Scranton. Id[.] at 43. The Officer asked for identification. Id[.] 

[Appellant] asked if he could step out of his car. Id. The Officer 

agreed and [Appellant] exited his car with the Officer noticing

[Appellant] beginning to act increasingly nervous. Id[.] at 44.

1 Notably, this neighborhood has been designated a 

high crime area by the Office of Economic 

Community Development (“OECD”). (N.T. 3/31/16 at 

pg. 6). This designation awards a grant to the City of 

Scranton to fund additional officers on patrol in this 

neighborhood. In addition, Officer Golden testified 

several other factors including [the] high number of 

drug related arrest[s], and the presence of Castle 

Night Club support his opinion that it is a high crime 

neighborhood. Id. at 6-9.

At this point, Officer Golden asked [Appellant] if he would 

consent to a search of his person for officer safety. Id[.] at 44. 

[Appellant] agreed. Id. While the Officer was patting [Appellant]

down, he detected an odor of marijuana coming from 

[Appellant’s] mid-section. Id.

Officer Golden asked [Appellant] if he could search his car. 

Id[.] at p. 45. [Appellant] declined stating it was not his car.[1]

Id. The Officer observed that [Appellant] was operating the car 

with a single key. Id. Officer Golden testified that based on his 

training and experience, the fact that [Appellant] was operating 

____________________________________________

1 The vehicle Appellant occupied was owned by Melinda Palermo-Albrittno. 

N.T., 3/31/16, at 20. Officer Golden testified that Ms. Palermo-Albrittno 

arrived at the scene and informed him that she had allowed Appellant to use 

the car and that she had not used the car in three months. Id. at 21.
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a third party vehicle with a single ignition key heightened his

suspicion that criminal activity was afoot. Id.

At around this time, Scranton Police Department K-9 

officer Kyle Kemp responded to the scene. Id. at 44. His canine 

partner conducted an exterior canine sniff of the car and alerted 

for the presence of a controlled substance. Id. at 52. Officer 

Kemp then placed his canine partner in the interior of the vehicle 

[Appellant] had been driving, which also resulted in a positive 

alert. Id. After the canine sniff was positive, Officer Golden 

conducted an interior search of the vehicle. Id[.] at 53. He 

observed a jar of peanut butter on the back seat. Id. Next to it 

was a box of rubber gloves. Id. Officer Golden opened the lid of 

the jar of peanut butter and observed the contents of the jar had 

been manipulated. Id[.] at 54. The Officer proceeded to reach 

into the jar and retrieve packets of heroin. Id[.] at 24. The hatch 

of the car was searched next, resulting in the discovery of four 

(4) glassine baggies within a box of diapers. Id. Officer Golden 

then moved on to search the front console of the vehicle, which

resulted in the discovery of one (1) bag of heroin packaged and 

ready for sale. Id[.] at 55. All recovered suspected heroin was 

field tested with positive results.[2]Id.

[Appellant] was then arrested and placed in the backseat 

of a patrol car. Id[.] at 56. [Appellant] was then advised of his 

Miranda Rights.[3]Id. Officer Golden testified that [Appellant]

was also then advised that he was going to a secure facility, that 

the Officer had smelled marijuana during the consent search, 

and that [Appellant] would be charged with additional crimes if 

he brought contraband into the facility. Id. [Appellant] replied 

“Fuck you, I got nothing.” Id. [Appellant] was then transported 

to Scranton Police Headquarters. Id[.] at 57.

Once at Scranton Police Headquarters, a strip search was 

attempted by Officer Golden but due to the uncooperative nature 

of [Appellant], more officers had to be called in. Id[.] at 57. 

Once officer’s remove[d] [Appellant’s] clothes, [Appellant] was 

____________________________________________

2 The record reveals that in total, 151 baggies of heroin were recovered from 

the vehicle. Affidavit of Probable Cause, 11/6/15, at 2.

3 See Miranda v. Arizona, 384 U.S. 436 (1966).
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instructed to turn and bend at the waist. Id[.] at 58. Officer 

Golden testified [Appellant] responded “Fuck you, suck my dick,

you know you like it.” Id. Once [Appellant] complie[d], it ... 

revealed a quantity of marijuana concealed under his scrotum. 

Id. Officers ask[ed] [Appellant] to remove the bag of marijuana, 

to which [Appellant] responded with another slew of sexual and 

graphic statements to the officers. Id. Once Officer Golden 

remove[d] the bag, it [was] field tested and test[ed] positive for 

THC. Id.

Pa.R.A.P. 1925(a) Opinion, 4/20/17, at 2-5. 

Appellant was charged with multiple crimes in connection with the 

heroin discovered in the vehicle and the marijuana discovered on his person. 

On May 16, 2016, following a jury trial, Appellant was convicted of one count 

of possession of a controlled substance with intent to deliver (“PWID”), one 

count of contraband, one count of possession of a controlled substance, two 

counts of possession of drug paraphernalia, and one count of possession of 

marijuana.4 On December 19, 2016, the trial court sentenced Appellant to 

an aggregate term of five to ten years of incarceration plus a sentence of 

two years and fifteen days of special probation to be served concurrently 

with the sentence of total confinement.

Appellant filed a timely post-sentence motion, and on January 10, 

2017, the trial court denied Appellant’s motion. Appellant filed a timely 

____________________________________________

4 35 P.S. § 780-113(a)(30); 18 Pa.C.S. § 5123(a); 35 P.S. § 780-

113(a)(16); 35 P.S. § 780-113(a)(32); 35 P.S. § 780-113(a)(16); and 35 

P.S. § 780-113(a)(31), respectively. 

 
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notice of appeal; both Appellant and trial court have complied with Pa.R.A.P. 

1925.

In this appeal, Appellant presents the following issues for this Court’s 

consideration:

1. Whether the verdicts and judgements of sentence at counts 1, 

(35 [P.S.] § 780-113(a)(30), possession with intent to deliver -

heroin) and 3 (simple possession - 35 [P.S.] § 780-113(a)(16)), 

should be vacated because the evidence was insufficient to 

convict in that the narcotics were not found on [Appellant’s] 

person and the Commonwealth failed to show sufficient evidence 

that [Appellant] constructively possessed the narcotics?

2. Whether the verdict and judgment of sentence at count two of 

the criminal information, 18 Pa.C.S.A. § 5123(a), should be 

vacated because the evidence was insufficient to establish that 

[Appellant] had the requisite mens rea to violate the statute in 

that he did not volitionally enter the police station in which 

marijuana was recovered from his person?

3. Whether the lower court erred in denying [Appellant’s] motion 

to suppress physical evidence seized from his person and the 

vehicle he drove because, prior to the searches, he was detained 

in violation of his rights as embodied in Article 1 § 8 of the 

Pennsylvania Constitution and the Fourth Amendment of the 

United States Constitution in that his detention was premised 

upon a suspicion that he was violating travel restrictions 

imposed as a condition of probation or parole rather than upon a 

reasonable suspicion that he was engaged in criminal activity?

4. Whether the trial court erred in interpreting the term “prison”

as used in 18 Pa.C.S.A. § 5123(a) in that the interpretation was 

not in the light most favorable to [Appellant] as mandated by 1 

Pa.C.S.A § 1928(b)(1), and whether the trial court’s 

interpretation of “prison”, embodied in its jury instruction 

defining a “prison” as a “building where people are kept as 

punishment for a crime or while they are waiting to go to court 

or a state or place of confinement”, constitutes reversible error 

because the instruction failed to clearly, adequately, and 

accurately reflect the law and the error was not harmless?
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Appellant’s Brief at 5-6 (full capitalization omitted).5

In Appellant’s first issue, he argues that the evidence was insufficient 

to convict him of PWID and simple possession of heroin because the 

narcotics were not found on his person, and the Commonwealth failed to 

prove constructive possession. We conclude that no relief is due.

We analyze challenges to the sufficiency of the evidence under the 

following standard:

Our standard when reviewing the sufficiency of the 

evidence is whether the evidence at trial, and all reasonable 

inferences derived therefrom, when viewed in the light most 

favorable to the Commonwealth as verdict-winner, are sufficient 

to establish all elements of the offense beyond a reasonable 

doubt. We may not weigh the evidence or substitute our 

judgment for that of the fact-finder. Additionally, the evidence 

at trial need not preclude every possibility of innocence, and the 

fact-finder is free to resolve any doubts regarding a defendant’s 

guilt 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. When evaluating the credibility and 

weight of the evidence, the fact-finder is free to believe all, part 

or none of the evidence. For purposes of our review under these 

principles, we must review the entire record and consider all of 

the evidence introduced. 

____________________________________________

5 We have renumbered Appellant’s issues for purposes of our discussion. 

Because Appellant raises challenges to both the sufficiency of the evidence 

and to the ruling of the suppression court, we must address the sufficiency 

of the evidence first. See Commonwealth v. Coleman, 130 A.3d 38, 41 

(Pa. Super. 2015) (stating that because a successful challenge to the 

sufficiency of the evidence warrants automatic discharge rather than retrial, 

we address that issue first).
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Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014) 

(citation omitted). 

The relevant elements of simple possession and PWID are as follows:

(a) The following acts and the causing thereof within the 

Commonwealth are hereby prohibited:

* * *

(16) Knowingly or intentionally possessing a 

controlled or counterfeit substance by a person not 

registered under this act, or a practitioner not 

registered or licensed by the appropriate State 

board, unless the substance was obtained directly 

from, or pursuant to, a valid prescription order or 

order of a practitioner, or except as otherwise 

authorized by this act.

* * *

(30) Except as authorized by this act, the 

manufacture, delivery, or possession with intent to 

manufacture or deliver, a controlled substance by a 

person not registered under this act, or a practitioner 

not registered or licensed by the appropriate State 

board, or knowingly creating, delivering or 

possessing with intent to deliver, a counterfeit 

controlled substance.

35 P.S. § 780–113(a)(16), (30). 

PWID can be inferred from the quantity of the drugs possessed and 

other surrounding circumstances, such as lack of drug paraphernalia. 

Commonwealth v. Bess, 789 A.2d 757, 762 (Pa. Super. 2002) (citation 

omitted). Factors that may be relevant to establishing that drugs were 

possessed with the intent to deliver include the particular method of 

packaging, the form of the drug, and the behavior of the defendant.
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Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000) (en 

banc). Moreover, we have held that circumstantial evidence is reviewed by 

the same standard as direct evidence and that a decision by the trial court 

will be affirmed “so long as the combination of the evidence links the 

accused to the crime beyond a reasonable doubt.” Commonwealth v. 

Johnson, 818 A.2d 514, 516 (Pa. Super. 2003) (citations omitted). 

As discussed above, the heroin seized in this matter was not recovered 

from Appellant’s person; it was discovered in the car that Appellant was 

driving. However, it is well settled that when the illegal item a person is 

charged with possessing is not found on his person, the Commonwealth may 

establish the elements of the possessory offense through “constructive 

possession.” Commonwealth v. Smith, 146 A.3d 257, 263 (Pa. Super. 

2016).

Constructive possession is a legal fiction, a pragmatic construct 

to deal with the realities of criminal law enforcement. 

Constructive possession is an inference arising from a set of 

facts that possession of the contraband was more likely than not. 

We have defined constructive possession as conscious dominion. 

We subsequently defined conscious dominion as the power to 

control the contraband and the intent to exercise that control. 

To aid application, we have held that constructive possession 

may be established by the totality of the circumstances.

Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004) (internal 

citations and quotation marks omitted). 

The evidence presented at trial established that Appellant was the sole 

occupant of the vehicle, Appellant was in the driver’s seat and in control of 
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the vehicle, there was no drug-use paraphernalia, and 151 baggies of heroin 

were found in the car. N.T., 5/16/16, at 41-43, 55, 68-70. Moreover, it was

likely that Appellant knew about the heroin in the car because his demeanor 

changed and he became agitated when Officer Golden began investigating 

Appellant’s version of events. Id. at 43.

6 Appellant also attempted to 

distance himself from the vehicle when police approached, and he had 

conflicting versions of the reason he was in Scranton. Id. at 42. Detective 

Harold Zech testified as an expert that people who transport illegal drugs 

often do so in a third party’s car in an effort to avoid any type of ownership

should the drugs be discovered. Id. at 115. Additionally, Detective Zech 

testified as an expert that the quantity and packaging of the heroin was 

consistent with PWID. Id. at 116. When this evidence and the attendant 

circumstances are viewed in the light most favorable to the Commonwealth

as the verdict winner, we conclude that the evidence was sufficient to prove 

that Appellant constructively possessed heroin and did so with the intent to 

deliver it. Accordingly, no relief is due.

____________________________________________

6 See Commonwealth v. Hughes, 865 A.2d 761, 792 (Pa. 2004) (“The 

conduct of an accused following a crime, including ‘manifestations of mental 

distress,’ is admissible as tending to show guilt.”). 
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In his second issue on appeal, Appellant argues that the evidence was 

insufficient to establish the crime of contraband. Appellant avers that he did 

not volitionally enter the police station and, therefore, the Commonwealth 

did not prove the requisite mens rea. 

We reiterate that when reviewing the sufficiency of the evidence, we 

must determine whether the evidence at trial, and all reasonable inferences 

derived therefrom, when viewed in the light most favorable to the 

Commonwealth as verdict-winner, are sufficient to establish all elements of 

the offense beyond a reasonable doubt. Trinidad, 96 A.3d at 1038. The 

crime of contraband is defined, in relevant part, as follows:

(a) Controlled substance contraband to confined persons 

prohibited.--A person commits a felony of the second degree if 

he ... brings into any prison ... 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,1 (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.

1 35 P.S. § 780-101 et seq.

18 Pa.C.S. § 5123(a).

We first note that the crime of contraband does not contain a scienter 

or specific-intent element. However, as Appellant points out, the Crimes 

Code states:
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(a) 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.

18 Pa.C.S. § 302(a). 

Reading 18 Pa.C.S. § 5123(a) and 18 Pa.C.S. § 302(a) together, we 

are satisfied that the Commonwealth provided sufficient evidence that 

Appellant intentionally brought marijuana into the Scranton Police 

Headquarters. The record reveals that after Appellant was arrested, he was 

advised that he was going to a secure facility. N.T., 5/16/16, at 56. The 

officers informed Appellant that he would be charged with additional crimes 

if he brought contraband into the facility. Id. Appellant said that he had 

nothing on his person, and he entered the facility with marijuana secreted 

under his scrotum.

There is simply no scenario where we can conclude that Appellant 

unknowingly, accidentally, or inadvertently hid marijuana under his scrotum. 

Rather, when we view the evidence in the light most favorable to the 

Commonwealth, we find that Appellant entered Scranton Police 

Headquarters intentionally hiding marijuana on his person. Additionally, 

Appellant’s argument that he did not intend to enter Police Headquarters 

because he was brought there against his will, Appellant’s Brief at 27, is 

unavailing. It is axiomatic that individuals are most often taken into police 

custody against their will because few people desire to go to jail. However, 
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as noted, Appellant, of his own free will, chose to hide marijuana on his 

person. After his arrest, Appellant was informed that he would be entering a

police facility and that possession of contraband would result in additional 

charges. Despite this explicit warning, Appellant elected not to inform the 

officers that he possessed marijuana, which was his right, but it resulted in 

him entering the facility with contraband by his own choosing. Appellant 

attempts to argue that he was forced into a position of incriminating himself 

if he had informed the officer that he possessed the marijuana. Id. 

Appellant misses the point. Had Appellant informed Officer Golden that he 

possessed marijuana, he may well have been charged with possession; 

however, by not informing Officer Golden, he entered the Scranton Police 

Headquarters committing the crimes of possession of marijuana and the 

additional crime of contraband. For these reasons, no relief is due.

In Appellant’s third issue, he alleges that the trial court erred in 

denying his motion to suppress because Appellant’s detention was based 

only on suspicion that he was violating the terms of his parole and not upon 

a reasonable suspicion that he was engaged in criminal activity. Appellant’s 

Brief at 16. For the reasons that follow, we disagree.

We begin with our well-established standard of review for the denial of 

a suppression motion.

In evaluating a suppression ruling, we consider the evidence of

the Commonwealth, as the prevailing party below, and any 

evidence of the defendant that is uncontradicted when examined 

in the context of the record. Commonwealth v. Sanders, 42 
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A.3d 325, 330 (Pa. Super. 2012). This Court is bound by the 

factual findings of the suppression court where the record 

supports those findings and may only reverse when the legal 

conclusions drawn from those facts are in error. Id.

Commonwealth v. Haynes, 116 A.3d 640, 644 (Pa. Super. 2015). 

Additionally, this Court examines only the evidence offered at the 

suppression hearing. In re L.J., 79 A.3d 1073, 1085-1087 (Pa. 2013).

Next, we note that there are three levels of interaction between police 

officers and citizens:

The first of these is a “mere encounter” (or request for 

information) which need not be supported by any level of 

suspicion, but carries no official compulsion to stop or to 

respond. The second, an “investigative detention” must be 

supported by a reasonable suspicion; it subjects a suspect to a 

stop and a period of detention, but does not involve such 

coercive conditions as to constitute the functional equivalent of 

an arrest. Finally, an arrest or “custodial detention” must be 

supported by probable cause.

Commonwealth v. Ranson, 103 A.3d 73, 77 (Pa. Super. 2014) (quoting 

Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)).

When Officer Golden first approached Appellant, the interaction was a 

mere encounter. However, as Officer Golden testified, a number of concerns

increased his level of suspicion. We point out that the following factors 

impact an officer’s reasonable suspicion that an individual is engaging in 

criminal conduct:

A police officer may detain an individual in order to 

conduct an investigation if that officer reasonably suspects that 

the individual is engaging in criminal conduct. This standard, less 

stringent than probable cause, is commonly known as 

reasonable suspicion. In order to determine whether the police 
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officer had reasonable suspicion, the totality of the 

circumstances must be considered. In making this 

determination, we must give due weight ... to the specific 

reasonable inferences the police officer is entitled to draw from 

the facts in light of his experience. Also, the totality of the 

circumstances test does not limit our inquiry to an examination 

of only those facts that clearly indicate criminal conduct. Rather, 

even a combination of innocent facts, when taken together, may 

warrant further investigation by the police officer.

Commonwealth v. Freeman, 150 A.3d 32, 36-37 (Pa. Super. 2016) 

(internal quotation marks and citation omitted).

The record reveals that a possible parole violation was not the only 

basis upon which Officer Golden based his suspicion of criminal activity. 

Rather, Officer Golden testified that when he approached Appellant’s vehicle, 

Appellant asked to exit the car to speak with the officer. N.T., 3/31/16, at 

13. At this point, Officer Golden asked whether Appellant was on probation 

or parole. Id. Appellant responded in the affirmative. Id. Officer Golden 

testified that he then wanted to contact the Pennsylvania Board of Probation 

and Parole (“State Parole”) to find out who was supervising Appellant. Id.

at 15. However, because Officer Golden knew that he would have to make a 

telephone call and take his focus off of Appellant, for his safety, he asked 

Appellant if he could search Appellant’s person. Id. at 18. At this juncture, 

Appellant was not detained, and the interaction remained a mere encounter. 

See Ranson, 103 A.3d at 77 (a mere encounter need not be supported by 

any level of suspicion, but it carries no official compulsion to stop or to 

respond). However, Appellant agreed to the search, and it was during this 
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consensual search of Appellant’s person that Officer Golden detected an odor

of marijuana at Appellant’s midsection. Id. This smell of marijuana was 

sufficient to establish reasonable suspicion that criminal activity was afoot. 

See Commonwealth v. Smith, 85 A.3d 530 (Pa. Super. 2014) (stating 

that the smell of marijuana emanating from the appellant’s basement

established reasonable suspicion to conduct a search for the marijuana). It 

was at this point that Officer Golden contacted State Parole. Id. at 18. 

Officer Golden testified that when he contacted State Parole, Appellant’s 

demeanor changed. Id. Appellant became agitated and told Officer Golden 

he feared for his life. Id. While Officer Golden called State Parole, 

Appellant called 911, and Appellant remained on the phone until back-up 

officers arrived on the scene. Id. While Officer Golden was on the phone 

with State Parole, he learned that Appellant was not to be in Scranton as a 

condition of his parole. Id. at 16. When back-up officers arrived, based on 

the aforementioned reasonable suspicion, a canine conducted a sniff of the 

exterior of the vehicle. Id. at 19, 23. Upon sniffing the car, the canine 

alerted to the smell of a controlled substance. Id. This canine sniff 

provided probable cause to search the interior of the vehicle. See 

Commonwealth v. Hernandez, 935 A.2d 1275, 1285 (Pa. 2007) (stating 

that once a canine sniff of a vehicle’s exterior triggers a positive indication, 

reasonable suspicion of contraband in the vehicle ripens into probable cause) 

(citing Commonwealth v. Rogers, 849 A.2d 1185, 1192 (Pa. 2004)). 
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Thus, when the officers searched the interior of the vehicle, they possessed 

probable cause. Accordingly, the search of the vehicle was lawful, the 

heroin recovered from the vehicle was properly seized, Appellant was legally 

arrested, and the search incident to Appellant’s lawful arrest revealed the 

marijuana. Appellant is entitled to no relief. 

In his final claim of error, Appellant avers that the trial court erred in 

defining “prison” in its jury instruction. Appellant asserts that this alleged 

error permitted the jury to improperly conclude that the term “prison,” as 

used in 18 Pa.C.S. § 5123(a), could include the Scranton Police 

Headquarters. We conclude that Appellant is entitled to no relief on this 

claim of error.

To determine whether a jury instruction faithfully 

characterized the statute upon which it is based, we first must 

determine the scope and meaning of the provision in question, 

thus furnishing a rubric for our inquiry. Statutory interpretation 

presents a question of law, which we resolve de novo. Once we 

have established the meaning and scope of the statute, we must 

determine whether the trial court, which enjoys broad discretion 

in fashioning its jury charge, clearly, adequately, and accurately 

related the law, so understood, to the jury. Only when the court 

commits an abuse of discretion or provides the jury with an 

inaccurate statement of law is there reversible error. 

Furthermore, even if an instruction is erroneous, relief is due 

only when the error is prejudicial. 

Commonwealth v. Veon, 150 A.3d 435, 444 (Pa. 2016) (internal citations 

and quotation marks omitted).

As stated above, the crime of contraband is defined, in relevant part, 

as follows:
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(a) Controlled substance contraband to confined persons 

prohibited.--A person commits a felony of the second degree if 

he ... brings into any prison ... any controlled substance included 

in Schedules I through V of the act of April 14, 1972 (P.L. 233, 

No. 64), known as The Controlled Substance, Drug, Device and 

Cosmetic Act, (except the ordinary hospital supply of the prison 

or mental hospital) without a written permit signed by the 

physician of such institution, specifying the quantity and quality 

of the substance which may be furnished to any convict, inmate, 

or employee in the prison or mental hospital, the name of the 

prisoner, inmate, or employee for whom, and the time when the 

same may be furnished, which permit shall be delivered to and 

kept by the warden or superintendent of the prison or mental 

hospital.

18 Pa.C.S. § 5123(a) (internal footnote omitted) (emphasis added). 

Pursuant to the statute, the Commonwealth must establish that Appellant 

brought contraband into a “prison.” Appellant is correct in noting that 

Section 5123 does not define the term “prison.”

The trial court addressed this issue as follows:

[Appellant] was charged with one count of 

Contraband/Controlled Substance in violation of 18 Pa.C.S.A § 

5123(a). This count pertains to the small amount of marijuana 

discovered under [Appellant’s] scrotum while he was being 

detained, post-arrest at the Scranton Police Headquarters. At the 

conclusion of the testimony at trial, [Appellant’s counsel] 

objected to the proposed jury instruction which was read to the 

jury. (N.T. 5/16/2016 at p. 117-130). This Court overruled 

counsel’s objection. Id.

The Pennsylvania Standard Jury Instruction for section 

5123(a) reads in pertinent part:

The Defendant has been charged with providing contraband. To 

find the Defendant guilty of this offense, you must find that the 

following elements have been proven beyond a reason[able]

doubt:

First, that the Defendant:
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(b) brought into a prison a controlled substance so classified 

under Pennsylvania law. I instruct you that marijuana is a 

controlled substance; and

Second that the Defendant did so without a written permit 

signed by the physician of the prison.

Pa. Standard Jury Instruction 15.5123(a)

At trial, the defense argued that the holding cell at the 

Scranton Police Headquarters did not satisfy the definition of a 

prison as contemplated by the Pennsylvania legislature. Id. This 

Court researched this issue and included two definitions from 

Merriam Webster’s Dictionary in the jury charge. The added 

language included:

“Prison” is defined by Merriam Webster’s Dictionary as a building 

where people are kept as punishment for a crime, or while they 

are waiting to go to court or a place or state of confinement, 

especially for criminals.

(N.T. 5/16/2016 at p. 131, 179)

Thereafter, the jury returned a verdict of guilty on the one 

(1) count of possession of contraband, as well as the remaining 

charges. In order to assess the allegations of error, we must first 

look to the Pennsylvania Crimes Code itself. The Crimes Code 

provides, “The provisions of this title should be construed 

according to the fair import of their terms...” 18 Pa.C.S.A § 105. 

See also Commonwealth v. Williams, 525 Pa. 216, 220 (1990). 

In assessing the fair import of 18 Pa.C.S.A § 5123(a), the 

Supreme Court of Pennsylvania recognized “the fair import of 

the present statu[t]e is that there are certain places where it is 

impermissible to bring certain enumerated substances. These 

consist of any 1) prison...” Williams at p. 220. The Court in 

Williams stated “The Legislative purpose in enacting 18 Pa.C.S.A

5123(a) was obviously to prevent the acquisition of contraband 

substances by persons confined to prisons and mental hospitals.”

Id[.] at p. 220-221. Further, the Court in Williams rejected the 

notion that in order to be convicted of this offense, the actor 

must have had the intention of transferring it to other prisoners

or inmates. Id[.] at p. 221.
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Additionally, Section 5123(a) does not define the word 

“prison.” As such, this Court is required to construe undefined 

words according to their “common and approved usage.” 1[]

Pa.C.S.A § 1921(a). The practice of utilizing “a dictionary to 

construe undefined words in a statue according to their common 

and approved usage” has been used by Pennsylvania courts in

previous cases. Commonwealth v. Hood, 392 Pa.Super 388, 391 

(Pa.Super. 1990). In the present case, the argument posed by 

defense counsel turned on the definition of the word “prison.”

This Court used the dictionary to determine the “common and 

approved usage” of that word.

As such, it is clear that the legislative purpose of Section 

5123(a) was not compromised by the interpretation of the word 

“prison,” thus the argument by [Appellant] is without merit.

Pa.R.A.P. 1925(a) Opinion, 4/20/17, at 7-9. We discern no error in the trial 

court’s definition of prison.

As discussed above, it is undisputed that Section 5123 does not define 

prison, and the trial court utilized the dictionary to define prison for the jury 

as “a building where people are kept as punishment for a crime, or while 

they are waiting to go to court or a place or state of confinement.” N.T., 

5/16/16, at 179. We conclude that the trial court’s definition was apt, and 

we find instructive the definition of prison found in the Pennsylvania Code 

concerning county jails:

Prison--A place, institution, building (or part thereof), set of 

buildings or area (whether or not enclosing a building or set of 

buildings) that is used for the lawful custody of individuals.

37 Pa. Code § 95.220a (Definitions). The definition provided by the trial 

court in this matter clearly, adequately, and accurately related the law to the 

jury. Veon, 150 A.3d at 444. Indeed, Appellant was in a place of 
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confinement and in lawful custody at the Scranton Police Headquarters, and 

it was at this location that he was discovered to be in possession of 

marijuana. After review, we conclude there was no abuse of discretion or 

error in the trial court’s definition of prison in the jury charge.

For the reasons set forth above, we conclude that Appellant is entitled 

to no relief. Accordingly, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judge Panella joins the Memorandum.

Justice Fitzgerald files a Concurring & Dissenting Statement.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/10/2017