HomeMy WebLinkAboutCP-21-CR-2493-2005
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
vs. : CP-21-CR-2493-2005
:
:
SHELDON BROOKS :
IN RE: OPINION PURSUANT TO RULE 1925
BEFORE HESS, J.
On December 5, 2006, the defendant was sentenced to a State Correctional Institution for
a term of not less than three nor more than eight years. This was as a result of a conviction,
following a jury trial, on a count of the unlawful delivery or possession with the intent to deliver
cocaine. New counsel was subsequently granted leave to file an appeal nunc pro tunc. We now
address the matter on appeal which we understand to be the sufficiency of the evidence as it
relates to the defendant’s conviction.
On May 26, 2005, the defendant, Mr. Brooks, was arrested on previously issued warrants.
He was searched incident to his arrest and a baggie of suspected crack cocaine was removed
from his left pants pocket. N.T. 28. Two-hundred sixty-five dollars in U.S. currency was
recovered from his right pants pocket along with a pack of rolling papers. The crack cocaine was
described as being “one large chunk.” N.T. 30. Detective David Fones, the arresting officer,
opined that cocaine was possessed by Mr. Brooks with the intent to deliver. His testimony was
that the piece of cocaine, possessed by the defendant, being over two grams in weight, was
usually broken up, by drug dealers, into smaller pieces, referred to as “rocks.” In other words,
the piece of crack cocaine possessed by Mr. Brooks was not of the weight or configuration
normally possessed for personal use. In addition, the police located a set of digital scales in the
CP-21-CR-2493-2005
defendant’s residence. Later testing revealed that the digital scales contained cocaine residue.
We are now satisfied, retrospectively, that this matter is governed by the holding in Com. v.
Ratsamy, 885 A.2d 1005 (Pa. Super. 2005), appeal granted, Com. v. Ratsamy, 912 A.2d 1292
(Pa. Dec.05, 2006). The Ratsamy case had not been brought to our attention at the time of the
trial of this case.
In Ratsamy, the police searched the defendant, recovered a loaded handgun, a plastic bag
containing a single chunk of crack cocaine and $349.00 in currency. Ratsamy’s companion was
found to be in possession of some currency and a plastic bag containing 199 plastic packets. The
Superior Court gave no weight to the packets possessed by the other person, as there was no
evidence that he was acting in concert with the defendant.
In Ratsamy, the Commonwealth’s evidence was virtually the same as in this case.
Specifically, an expert opined that frequently individuals purchasing a “rock” of that size would
have the intent to break it into smaller pieces for resale. The Court noted that this opinion rested,
as did the opinion of Officer Fones, on the premise that the average drug-addicted crack user
rarely, if ever, possesses enough money to buy crack in a larger quantity. The Court went on to
observe that:
Conversely, a drug user that does have sufficient
means to buy $200-250 worth of drugs at a time
would, from a certain perspective, be wise to do so,
as by doing so he reduces his risk of getting caught
or having other misfortune befall him as opposed
to making numerous purchases of a smaller
quantity. Of course, as touched upon earlier, he
would also enjoy the economy of buying a larger
size piece of crack.
When one reduces the expert’s opinion to its
essence, the Commonwealths expert offers an
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opinion based upon statistical extract. Because the
expert’s experience was that many individuals who
have purchased a rock of the size in question here
did so with the intent to break it up and sell it to
others, the expert opines that Appellant must have
had the similar intent. This approach is akin to
criminal propensity evidence that is generally
deemed inadmissible. Query: if a defendant’s past
criminal history is not competent evidence to prove
his guilt of the offense currently charged, how can
the criminal actions of others be used as a basis to
presume guilt of another person altogether?
Id., at 1009.
The Ratsamy court then went on to discuss several other appellate cases in Pennsylvania
which upheld guilty verdicts for possession with intent to deliver. We will not reiterate the
discussion here but note, with interest, that none of those cases involve a quantity of cocaine as
small as the quantity in this case. Admittedly, scales were located in the home where the
defendant was one of the residents. There is no way of telling, however, when those scales came
into contact with cocaine or whether the scales are related to the cocaine which the defendant had
in his pocket. Therefore, we do not believe that the presence of these particular scales affect the
application of the Ratsamy holding to this case. It is, therefore, with the benefit of legal
hindsight, that we are satisfied the defendant’s conviction cannot be supported in this case.
May , 2007 _______________________________
Kevin A. Hess, J.
Michelle H. Sibert, Esquire
Chief Deputy District Attorney
Gregory Abeln, Esquire
For the Defendant
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