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HomeMy WebLinkAbout00-0980 criminalCOMMONWEALTH VS. LEE STEWART IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-0980 CRIMINAL IN RE' OPINION PURSUANT TO RULE 1925 On November 8, 2000, the defendant was found guilty at a trial, without jury, of the unlawful possession with intent to deliver a schedule II controlled substance. On December 19, 2000, the defendant was sentenced to a term of one to two years in a state correctional institution. He has filed an appeal and a concise statement of matters complained of. In short, the defendant challenges the sufficiency of the evidence claiming that it shows, at most, that the defendant possessed cocaine for his personal use. It is well established that in post-verdict reviews, the sufficiency of the evidence must be evaluated by reading it in a light most favorable to the Commonwealth and drawing any reasonable inferences arising therefrom. See Com. v. Johnson, 428 Pa. Super. 494, 631 A.2d 639 (1993). In this case, that evidence is as follows. On April 11, 2000, during the morning hours, Officer Richard Pickles of the Harrisburg City Police Department was called to the Holy Spirit Hospital in Cumberland County. His purpose was to serve an arrest warrant on the defendant, Lee Stewart. He was accompanied by two other officers from Harrisburg who were met by Detective Landis and Officer Kauffman of the East Pennsboro Township Police Department. At the time, Mr. Stewart was visiting a girlfriend who had had a baby. The defendant was arrested in a hallway in the hospital. Following a brief struggle, he was searched. A plastic bag containing a quantity of"rock 00-0980 CRIMINAL cocaine" was retrieved from Mr. Stewart's pants pocket. The bag contained thirty-four individual packages each containing cocaine. The defendant was also found to be in possession of a pager. Also on his person was a quantity of currency consisting of a one-hundred dollar bill, twenties and some tens and fives. The money totaled $692.00. The total weight of the cocaine was 2.3 grams. One of the witnesses called by the Commonwealth was Daniel Peiper of the Cumberland County Drug Task Force. He has received specialized training in narcotics detection, has worked undercover, and has been involved in hundreds of drug investigations. He indicated that Mr. Stewart's possession of the cocaine in question was "definitely" consistent with possession with intent to deliver. He noted that users of cocaine generally buy between three to six rocks of cocaine and "there is never a need to package it separately." N.T. 33. Agent Peiper also noted that the defendant did not possess any paraphernalia related to the use of the cocaine. He testified, in addition, that the defendant's possession of the pager and large sums of cash was consistent with his being a dealer. In Com. v. Jackson, 435 Pa. Super. 410, 645 A.2d 1366 (1994) the court discussed the various factors to be taken into consideration when determining whether or not a quantity of controlled substance is possessed with intent to deliver. In Pennsylvania, the intent to deliver may be inferred from possession of a large quantity of controlled substances... It follows that possession of a small amount of a controlled substance supports a conclusion that there is an absence of intent to deliver. If, when considering only the quantity of a controlled substance, it is not clear whether the substance is being used for personal consumption 00-0980 CRIMINAL or distribution, it then becomes necessary to analyze other factors. In these cases, the quantity of the controlled substance is but one factor that we look to in analyzing whether the defendant had the necessary intent to deliver a controlled substance... Other factors to consider when determining whether a defendant intended to deliver a controlled substance include the manner in which the controlled substance was packaged, the behavior of the defendant, the presence of drug paraphernalia, and large sums of cash in the possession of the defendant... The final factor to be considered is expert testimony. "EXpert opinion testimony is admissible concerning whether the facts surrounding the possession of controlled substances are consistent with an intent to deliver rather than with an intent to possess it for personal use." .... Id. at 1368 (citations omitted). In Com. v. Williams, 419 Pa. Super. 380, 615 A.2d 416 (1992) the court found that the defendant possessed 5.94 grams of cocaine with the intent to deliver. The court upheld the defendant's conviction based upon the packaging of the cocaine and the large amount of cash seized from the defendant. In Com. v. Sherrell, 414 Pa. Super. 477, 607 A.2d 767 (1992) the court found that the mere possession of 4.85 grams was not dispositive on the issue of whether it was possessed with intent to deliver. However, the "packaging and form of the rocks, when considered in conjunction with appellant's lack of drug paraphernalia to facilitate immediate consumption of the crack cocaine" and a detective's expert opinion were sufficient to establish beyond a reasonable doubt that the defendant intended to distribute or re-sell crack cocaine. Id. at 772. In Com. v. Torres, 421 Pa. Super. 233, 617 A.2d 812 (1992) the defendant was found to be in possession of 4.63 grams of cocaine wrapped into seventeen packets (half the number in 00-0980 CRIMINAL the instant case). Three unopened boxes of plastic sandwich bags were found in the back seat of the defendant's car. The police officer found no drug paraphernalia commonly associated with the consumption of cocaine but did find $236.00 in small denominations on the appellant's person. The Superior Court concluded that this evidence, viewed in a light most favorable to the Commonwealth, supported a conclusion that the defendant possessed the cocaine with intent to deliver. While the quantity of cocaine in the matter sub judice is somewhat less than in the cases we have discussed, other facts and circumstances are the same. The defendant, here, was found in possession of a large sum of cash. The defendant possessed no paraphernalia consistent with personal use. Expert testimony was to the effect that the packaging was consistent with an intent to sell. We are satisfied, therefore, that the evidence in this case was sufficient to support a conviction. January ,25° , 2001 Michael Ferguson, Esquire Assistant District Attorney K~:Hess, J. ' Ellen K. Barry, Esquire Assistant Public Defender :rlm