HomeMy WebLinkAboutCP-21-CR-0000046-2014
COMMONWEALTH : IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
MICHAEL ANDREW :
KONETSCO : CP-21-CR-0046-2014
IN RE: OPINION PURSUANT TO PA.R.A.P. 1925(a)
Peck, J., February 16, 2017-
Following a jury trial held October 21, 2014 through October 24, 2014, Appellant
Michael Andrew Konetsco was convicted of the sole count of Possession with Intent to
Deliver a Schedule I Controlled Substance, Marijuana, an ungraded felony. Defendant
was sentenced on November 25, 2014, to undergo imprisonment in the Cumberland
County Prison for not less than fourteen months, nor more than twenty-eight months.
Defendant’s Motion for Reconsideration of Sentence and Request for New Trial was
1
denied on December 3, 2014. After some months of court activity on substantive and
procedural issues not at issue in the instant appeal, Defendant’s direct appellate rights
were reinstated pursuant to order of the Superior Court on November 22, 2016. The
instant Concise Statement of Matters Complained of on Appeal was filed on January 10,
2017. Defendant alleges a single Error:
1.The verdict for unlawful possession of a controlled substance with intent to
2
deliver was against the sufficiency of the evidence.
This Court offers the following Opinion, pursuant to PA.R.A.P. 1925(a), in
Support of its decision.
1
Order of Court, In re: Defendant’s Motion for Reconsideration of Sentence and Request for New Trial,
12/3/2014.
2
Concise Statement of Matters Complained of on Appeal, 12/3/2014.
FINDINGS OF FACT
The present matter concerns Defendant’s arrest and conviction for Possession with
Intent to Deliver a Schedule I Controlled Substance, Marijuana, an ungraded felony. On
December 13, 2013, the Pennsylvania State Police (hereinafter the “PSP”) were called to
a FedEx facility in Lower Swatara Township, Pennsylvania in response to a package that
3
had been deemed suspicious by a senior security specialist for FedEx. The FedEx
employee in question testified at trial that she pulled the package from the sorting line
and alerted the PSP of her suspicions because the package was wrapped unusually (with
black duct tape instead of packing tape), because the package had a hand-written airway
bill (which is often used by FedEx customers attempting to send drugs because it allows
the customer to pay with cash without showing identification), and because the package
4
was coming from a “source state” (Texas). The PSP’s response to FedEx’s report of a
suspicious package included sending a canine unit, Trooper Jon Mearkle and his canine
5
Zigi, to the FedEx facility to conduct a canine sniff. After following the PSP protocol
6
for a canine sniff, Zigi alerted and indicated that the suspect parcel contained narcotics.
Based on Zigi’s indication that the package contained narcotics, a search warrant
7
was obtained by the PSP. The subsequent search of the package revealed that it
8
contained a vegetable matter which field tests indicated was marijuana. The PSP then
9
obtained an anticipatory search warrant and attempted to conduct a controlled delivery
of the package at the intended delivery address, which was 101 Texaco Road,
10,11
Mechanicsburg, Pennsylvania 17050.PSP Corporal Todd Rudy (hereinafter
3
Notes of Testimony, In re: Jury Trial, October 21-23, 2015 (Peck, J.) (hereinafter “N.T.”), at 64-65.
4
Id. at 183-184.
5
Id. at 65.
6
Id. at 67, 71-72.
7
Id. at 201-202, Commonwealth’s Exhibit Number 15.
8
N.T. at 202-204.
9
Id. at 82-83, 205, Commonwealth’s Exhibit 5.
10
N.T. at 204.
2
“Corporal Rudy”) went undercover as a FedEx delivery person and delivered the package
12
to the 101 Texaco Road address. Corporal Rudy identified the Defendant as the person
to whom he delivered the package in question, and Corporal Rudy further testified that
13
the Defendant stated that he had been waiting for this package to arrive. Pursuant to the
terms of the anticipatory search warrant, once the package was accepted and taken into
14
the 101 Texaco Road property, the PSP executed a search warrant on the property.
While the PSP conducted its search, the Defendant was informed of his Miranda
15
rights, which he acknowledged before he was questioned. During the subsequent
questioning, the Defendant first indicated that he was expecting the package to contain
16
guacamole from his friend Jo in Texas. When a PSP officer pointed out that guacamole
must be refrigerated and this package was clearly not refrigerated, the Defendant changed
his story and indicated that he was expecting to receive high-end toffee and chocolate
17
from Jo in Texas, which he would use to make cheesecakes. The Defendant told the
PSP that he did not know Jo’s last name, but that he had sent a $4,100 money order from
the Walmart on the Carlisle Pike just a few days prior in order to pay Jo for the toffee and
18
chocolate. When the Defendant was informed that the package had been sent by a John
19
Roberts in Austin, Texas, and not from “Jo,” the Defendant had no answer.
Furthermore, further research by the PSP revealed that the $4,100 money order was sent
20
from Defendant to a man named Ron Potter in Austin, Texas, not to “Jo.” In summary,
a money order was sent from Defendant, who resides at 101 Texaco Road in
Mechanicsburg, to Ron Potter in Austin, Texas on December 9, 2013, and the package
11
The package was addressed to Andre’s Specialty Cheesecakes, 101 Texaco Road, Mechanicsburg,
Pennsylvania 17050. The PSP’s research indicated that no business named Andre’s Specialty
Cheesecakes was associated with the 101 Texaco Road address. N.T. at 207.
12
Id. at 82.
13
Id. at 84.
14
Id. at 86-87.
15
Id. at 215.
16
N.T. at 215.
17
Id. at 215.
18
Id. at 216.
19
Id. at 217-218.
20
Id. at 218, Commonwealth’s Exhibit Number 17.
3
containing marijuana was sent to Andre’s Specialty Cheesecakes, at 101 Texaco Road in
Mechanicsburg, from John Roberts in Austin, Texas on December 12, 2013.
The PSP search of the 101 Texaco Road property resulted in the seizure of the
21
marijuana contained in the original suspicious package, empty pill bottles in various
22232425
sizes, an Ohaus beam scale, two smoking pipes, the Defendant’s cell phone, and
2627
various other items. The bag of marijuana was sent to the PSP for further testing,
28
which confirmed that the bag contained 397 grams of Marijuana, Schedule I. The
29
scales, pill bottles, and smoking pipes were not sent for further forensic analysis. A
search warrant for the contents of the cell phone was obtained, and its data was analyzed,
30
which the PSP found to be consistent with narcotics trafficking. Specifically, testimony
was given that the Defendant seemingly used the term “cheesecake” as code for narcotics
31
in text messages.
The Commonwealth also presented the expert testimony of Detective Jeff Mohn
(hereinafter “Detective Mohn”), who was recognized by the Court as an expert in the
32
field of drug trafficking. Detective Mohn testified that, in his opinion, the Defendant
33
possessed the marijuana in question with the intent to deliver the same. In reaching this
opinion, Detective Mohn testified that he considered the following factors: the method in
which the marijuana was sent to the Defendant, including the fictitious names used for
21
N.T. at 214.
22
Id. at 213. It should be noted, however, that the search revealed three shipping bag’s worth of empty
pill bottles, but only a representative sample of the empty pill bottles was actually seized by the PSP.
23
Id. at 223.
24
Id. at 223.
25
Id. at 223.
26
Id. at 223.
27
Testimony was given that there was a delay of six months before the marijuana was sent to the lab for
further analysis, but that the bag remained in the locked evidence room at the PSP barracks the entire
time. N.T. at 229. Additional testimony indicated that the lab analysis would not have been affected by
the delay. Id. at 171.
28
Id. at 167.
29
Id. at 230-231.
30
Id. at 224-228.
31
Id. at 227-228.
32
N.T. at 257.
33
Id. at 293.
4
34
the sender and recipient of the package, the amount of marijuana which was contained
353637
in the package, the presence of scales and empty pill bottles at the Defendant’s
38
residence, the use of a money order to pay a sender in Texas, and the use of coded text
39
messages.
Although the Defendant did not testify in his own defense, the Defendant called
witnesses and presented evidence on his behalf. The thrust of Defendant’s defense was
that he did not know that the box contained marijuana, and that he was expecting the box
to contain ingredients for his legitimate cheesecake business. To prove the legitimacy of
his cheesecake business, Defendant called friends and family as witnesses to testify about
4041
his cheesecakes, he submitted menus and business cards from his cheesecake business
42
into evidence, and he provided blueprints for his unique cheesecake press.
Based on the foregoing evidence, the jury found the Defendant guilty of
Possession with Intent to Deliver a Schedule I Controlled Substance, Marijuana. This
appeal followed.
Defendant was sentenced on November 25, 2014, to pay the costs of prosecution,
pay a $100.00 fine, and to undergo imprisonment in the Cumberland County Prison for
not less than fourteen months, nor more than twenty-eight months, with four days credit
43
for time served. Katie J. Maxwell, Esq., (stand by counsel at trial, where Defendant had
represented himself) was appointed appellate counsel and filed a Motion for
44
Reconsideration of the Sentence and a Request for New Trial on December 2, 2014.
34
Id. at 259-263, 276-277.
35
Id. at 264-267.
36
Id. at 269-271.
37
N.T. at 268-269.
38
Id. at 273-274, 281-285.
39
Id. at 277-281.
40
Id. at 398-999, Defendant’s Exhibit Number 62.
41
N.T. at 475, Defendant’s Exhibit Number 67.
42
N.T. at 471-471, Defendant’s Exhibit Number 66.
43
Notes of Testimony, In re: Sentencing, 11/25/2014.
44
Id.; Motion for Reconsideration of Sentence and Request for New Trial, 12/2/2014.
5
45
This Court denied the Motion by Order dated December 3, 2014. Subsequently,
Defendant alleged he was unable to reach Ms. Maxwell, filed a Motion to Dismiss
4647
Appellate Counsel, and filed, pro se, a Statement of Errors Complained of on Appeal
48
and a supplement to that Statement. By Order dated August 19, 2016, the Superior
Court concluded it did not have jurisdiction over the appeal, quashed the appeal, and
directed the trial court to treat Defendant’s motion as a first petition under the Post-
49
Conviction Relief Act.
After a hearing, Defendant’s direct appellate rights were reinstated by Order on
50
November 30, 2016. By and through counsel, Defendant filed a Notice of Appeal on
51
December 20, 2016 and the instant Concise Statement of Matters Complained of on
52
Appeal on January 10, 2017.
DISCUSSION
On appeal, the Defendant challenges whether the evidence presented by the
Commonwealth was sufficient to sustain his conviction for possession with intent to
deliver a controlled substance. The standard of review for a challenge to the sufficiency
of the evidence is as follows:
In evaluating a challenge to the sufficiency of the evidence, we must
determine whether, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, together with all reasonable inferences
therefrom, the trier of fact could have found that each and every element of
the crimes charged was established beyond a reasonable doubt… This
standard is equally applicable to cases where the evidence is circumstantial
rather than direct so long as the combination of evidence links the accused
to the crime beyond a reasonable doubt. Unless the evidence presented at
45
Order of Court, In re: Defendant’s Motion for Reconsideration of Sentence and Request for New Trial,
12/3/2014.
46
Motion for Dismissal of Appellate Counsel, 4/28/ 2015.
47
Statement of Errors Complained of on Appeal, 7/23/2015. This Court filed a responsive Opinion in the
matter pursuant to Pa.R.A.P. on December 10, 2015.
48
Amendment to the Post Conviction Collateral Relief Act, 11/14/2016.
49
Commonwealth v. Konetsco, 985 MDA 2015, August 19, 2016.
50
Order of Court, In re: Defendant’s Direct Appellate Rights Reinstated, 11/30/2016.
51
Notice of Appeal, 12/20/2016.
52
Concise Statement of Matters Complained of on Appeal, 1/10/2017.
6
trial is “so weak and inconclusive that, as a matter of law, no probability of
fact can be drawn from the combined circumstances,” the verdict should
not be disturbed on appeal.
Commonwealth v. Lee, 956 A.2d 1024, 1027 (Pa. Super. 2008)(internal citations
omitted). Specifically, in regards to a conviction for possession with intent to deliver,
\[t\]he Commonwealth must prove both the possession of the controlled
substance and the intent to deliver the controlled substance. It is well settled
that all the facts and circumstances surrounding possession are relevant in
making a determination of whether contraband was possessed with intent to
deliver.
In Pennsylvania, the intent to deliver may be inferred from possession of a
large quantity of controlled substance.
Commonwealth v. Lee, 956 A.2d at 1028 (quoting Commonwealth v. Brown, 904 A.2d
925, 931-932 (Pa. Super. 2006)). Furthermore, “\[w\]hen determining whether there was
sufficient evidence to sustain a charge of possession with intent to deliver… the
commonwealth may establish the essential elements of the crime by wholly
circumstantial evidence.” Commonwealth v. Williams, 615 A.2d 416, 418 (Pa. Super.
1992)(internal citations omitted). The fact finder is free to believe all, part, or none of the
evidence presented at trial. Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa. Super.
2011)(internal citations omitted). Additionally, the jury is not obligated to accept a
defendant’s evidence. Commonwealth v. Morales, 91 A.3d 80, 90 (Pa. 2014).
In the present case, Defendant disputes that he knowingly possessed the marijuana
in question. Defendant argues that he only accepted the package containing the
marijuana because he expected it to contain baking supplies. To support this argument,
Defendant points to the fact that he had never even opened the package at the time that
the PSP executed the search warrant, seized the marijuana, and arrested him. However,
the evidence presented by the Commonwealth belies the Defendant’s argument.
Testimony was given that the Defendant originally claimed that he expected the
package to contain guacamole, but that he quickly changed his story when a PSP officer
7
53
pointed out that guacamole needed to be refrigerated. Further testimony was given that
the $4,100 money order that Defendant sent to Ron Potter in Austin, Texas is more
consistent with the price of approximately one pound of marijuana than with the price of
54
even the most expensive toffee and chocolate. Additionally, testimony was given that
the Defendant told the PSP officer disguised as a FedEx delivery person that he had been
55
waiting for the package’s arrival. Thus, when viewing this evidence in the light most
favorable to the Commonwealth as verdict-winner, as is required on appeal, it is clear that
the Commonwealth met its burden of establishing that the Defendant knowingly
possessed a controlled substance, marijuana.
Additionally, the evidence presented at trial sufficiently established that the
Defendant possessed the marijuana with the intent to deliver. As noted above, the intent
to deliver a controlled substance can be inferred in Pennsylvania from the possession of a
large quantity of a controlled substance. Commonwealth v. Lee, 956 A.2d at 1028. In the
present case, the Defendant possessed 397 grams of marijuana, which is slightly less than
56
a pound. The Commonwealth provided expert testimony that such an amount of
57
marijuana is not common for personal use. Instead, the expert testimony established
that such an amount is more commonly broken down for sale and delivery in smaller
58
quantities.
The items collected from the Defendant’s home by the PSP and entered into
evidence support the Commonwealth’s position that the marijuana was possessed with
the intent to deliver. Expert testimony was given that the triple beam scale seized from
the Defendant’s home, as well as the numerous empty pill bottles without labels on them,
would be useful for breaking the larger amount of marijuana down into smaller quantities
59
for sale and delivery. Additionally, testimony was given that the contents of the
53
N.T. at 215.
54
Id. at 228.
55
Id. at 84.
56
Id. at 167.
57
Id. at 265-266.
58
N.T. at 269-270.
59
Id. at 267-271.
8
60
Defendant’s cell phone are consistent with narcotics trafficking. Thus, when viewing
all of the evidence in the light most favorable to the Commonwealth, this Court found
that the Commonwealth established beyond a reasonable doubt that the Defendant had
the requisite intent to deliver.
CONCLUSION
Based on the foregoing reasons, this Court found that sufficient evidence was
presented at trial to establish each of the elements of possession with intent to deliver a
controlled substance, marijuana, beyond a reasonable doubt, and Defendant’s conviction
should be upheld on appeal.
BY THE COURT,
Christylee L. Peck, J.
Charles J. Volkert, Jr., Esq.
Chief Deputy District Attorney
Marlin L. Markley, Jr., Esq.
3920 Market Street
Suite 303
Camp Hill, PA 17011
Court-appointed Attorney
For Defendant
Court Administrator
60
Id. at 224-228.
9