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HomeMy WebLinkAbout00-1157 CriminalCOMMONWEALTH Vo WILLIAM TODD ELLIOTT OTN: H2034071 AND IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-1157 CRIMINAL TERM CHARGES: (I-A) POSSESSION WITH INTENT · TO DELIVER A SCHEDULE II · CONTROLLED SUBSTANCE; · (I-B) UNLAWFUL POSSESSION · OF SCHEDULE II CONTROLLED · SUBSTANCE; · (2) UNLAWFUL POSSESSION OF · SMALL AMOUNT OF · MARIJUANA IN RE: DEFENDANT'S POST-SENTENCE MOTION BEFORE OLER, J. ORDER OF COURT NOW, this 30th day of April, 2001, upon consideration of Defendant's Post-Sentence Motion, the motion is denied. Michelle E. Hamilton, Esq. Senior Assistant District Attorney BY THE COURT, Taylor P. Andrews, Esq. Chief Public Defender COMMONWEALTH Vo WILLIAM TODD ELLIOTT OTN: H2034071 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-1157 CRIMINAL TERM CHARGES: (l-A) POSSESSION WITH INTENT TO DELIVER A SCHEDULE II CONTROLLED SUB STANCE; (l-B) UNLAWFUL POSSESSION OF SCHEDULE II CONTROLLED SUBSTANCE; (2) UNLAWFUL POSSESSION OF SMALL AMOUNT OF MARIJUANA IN RE: DEFENDANT'S POST-SENTENCE MOTION BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., April 30, 2001. In this criminal case, Defendant was found guilty, following a jury trial, of possession with intent to deliver cocaine, simple possession of cocaine, and possession of a small amount of marijuana. Following imposition of sentence,2 Defendant filed a post-sentence motion.3 Defendant's motion seeks, in the alternative, a judgment of acquittal with respect to the charge of possession with intent to deliver, or a new trial. The motion for judgment of acquittal is based upon insufficiency of the evidence as to intent to deliver. ~ Trial N.T. 119-23 (hereinafter N.T. __). 2 Defendant was sentenced to serve a mandatory minimum prison term with respect to the charge of possession of cocaine with intent to deliver, and to pay a fine of $50 with respect to the charge of possession of marijuana. The charge of simple possession of cocaine was deemed to have merged with the charge of possession with intent to deliver, for purposes of sentencing. Order of Court, December 12, 2000. 3 Defendant's Post-Sentence Motions Pursuant to Pa.R.Crim.P. 1410, filed December 4, 2000. The motion for a new trial is based upon certain errors or improprieties related to testimony of an expert witness presented by the Commonwealth. The witness was a police detective who enumerated some of the factors bearing upon the question of whether drugs are possessed for sale or for personal use. Specifically, Defendant contends that [t]he Trial Court erred in this case and a new trial should be ordered for the following reasons: (a) It was error to deny the defense request that the expert testimony of Detective David R. Fones tendered by the Commonwealth be first received out of the presence of the jury because the trial prosecutor was unable to articulate an offer of proof. (b) It was error for Detective Fones to be permitted to testify to his opinion as an expert with regard to the quantity of cocaine and the use of a container for the cocaine since there was an insufficient basis provided for the opinion. (c) It was error for the trial prosecutor to argue in closing argument that the Commonwealth proved that possession of 2.7 grams of crack cocaine meant that the possession was with intent to deliver. (d) It was error for the Court to overrule the defense objection to this argument and to deny the defense request for a curative instruction .4 4 Defendant's Post-Sentence Motions Pursuant to Pa.R.Crim.P. 1410, paragraph 6, filed December 4, 2000. 2 The Commonwealth and Defendant submitted briefs on Defendant's post- sentence motion, and argument on the motion was held on April 9, 2001.5 For the reasons stated in this opinion, Defendant's post-sentence motion will be denied. STATEMENT OF FACTS The test for sufficiency of the evidence in a criminal case has been stated by the Pennsylvania Superior Court as follows: The test to be applied in determining the sufficiency of evidence to sustain a conviction is whether, accepting as true all the evidence and all reasonable inferences arising therefrom upon which, if believed, the trier of fact could properly have based its verdict it is sufficient to prove beyond a reasonable doubt that the accused is guilty of the crime or crimes with which he has been charged. As with all challenges to the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the verdict winner, in this case the Commonwealth.6 The Commonwealth is entitled to the benefit of all reasonable inferences deducible from the evidence,7 and the jury, as trier-of-fact, is free to believe all, part or none of the evidence presentedfi Sufficiency of the evidence is not to be evaluated on the basis of a diminished record? Viewed in the light most favorable to the Commonwealth, the evidence in the present case may be summarized as follows. On Friday, May 12, 2000, at about 11:15 p.m., as the result of a call from a resident, Carlisle Borough police~° were dispatched to the 200 block of North East Street in the borough.~ As he 5 Pursuant to a motion of Defendant, the 120-day period for disposition of the post-sentence motion was extended for a period of 30 days in accordance with Pennsylvania Rule of Criminal Procedure 1410(B)(3)(b). See Order of Court, dated March 22, 2001. 6 Commonwealth v. Barnes, 310 Pa. Super. 480, 482-83,456 A.2d 1037, 1038 (1983). ? Commonwealth v. Gease, 548 Pa. 165, 169, 696 A.2d 130, 132, cert. denied, 522 U.S. 935, 118 S. Ct. 343, 139 L. Ed. 2d 266 (U.S. Pa. Oct. 20, 1997) (No. 97-5645). 8 Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353,354 (1979). 9 Commonwealth v. Palmer, 751 A.2d 223 (Pa. Super. Ct. 2000). l0 The Borough of Carlisle is in Cumberland County, Pennsylvania. N.T. 50. il N.T. 15-16, 20. 3 walked south on North East Street, Officer Eric Dale spotted Defendant and a woman named Dorothy Rupp walking north on the opposite side of the street.~2 Defendant and his companion were not aware of the officer's presence. When they reached a darkened area in the vicinity of a driveway or minor alleyway leading back to a vacant business establishment, they left the sidewalk ~4 The officer positioned himself in the darkened area and proceeded into the alley. which Defendant and his companion had passed through.~S Defendant and Ms. Rupp stopped in an area at the end of the alley which was somewhat illuminated by a light on the vacant building and which contained some bushes? Defendant took from his person a small, black container and showed its contents to Ms. Rupp, who leaned forward and visually inspected the contents. ~ ? As they were doing so, either Defendant or Ms. Rupp realized that they were being observed.~8 Defendant's body made a jumpy motion and he drew the ~9 With his back toward the officer, he deposited the container back to his person. container in a bush, turned and began walking away.2° The officer called to Defendant by name, whereupon Defendant began running.2~ As he ran after Defendant and passed Ms. Rupp and the bush, the ~2 N.T. 20-21. ~3 N.T. 21. ~4 See N.T. 21. ~5 N.T. 21. ~6 N.T. 22. ~7 See N.T. 22. ~8 N.T. 22-23. ~9 N.T. 23. 20 N.T. 23-24. 2~ N.T. 24. 4 officer warned Ms. Rupp not to disturb the container.22 Ms. Rupp left the scene and went home.23 The officer's pursuit of Defendant was unsuccessful,24 but Defendant was eventually located.25 The container in question proved to be a small, round plastic canister for "Blackbeard's Original Beef Jerky Chew.''26 The canister contained a plastic baggie which held 3.1 grams of marijuana. It also contained a second plastic baggie which held about 14 white nuggets (rocks) of crack cocaine, weighing a total of 2.7 grams.27 The canister also contained a residue of chunky material? According to testimony of a Carlisle Borough police detective experienced in drug investigations,29 one practice of drug dealers was to carry cocaine which was for sale in a container of this sort, in contradistinction to the practice of users, who were less concerned with projecting an innocent appearance in public, preservation of items in a merchantable state, and ease of disposal in an emergency.3° Ten of the rocks had a street value of $40.00 to $50.00 each, and 22 N.T. 24. 23 N.T. 53. Ms. Rupp testified at the trial that on the night in question she had happened to meet Defendant as she was coming back from an outdoor soda machine. N.T. 51. According to her testimony, Defendant asked her what she was doing, she heard Officer Dale yell to Defendant to stop, and Defendant ran off, throwing something into a bush as he fled. N.T. 52-53. She denied that Defendant had shown her anything and said she had no knowledge of what was thrown. N.T. 51, 53-54. She testified that she left the scene after the incident and walked to her home, which was located in the same block of North East Street. N.T. 53. 24 See N.T. 24-25. 25 N.T. 24-25. 26 N.T. 26; Commonwealth's Exhibit 5. 27 N.T. 26. 28 N.T. 26. 20 N.T. 81, 83. 3o N.T. 90, 91. four had a street value of about $20.00 each, for a total value of between $480.00 and $580.00, in the opinion of the detective.3~ According to the detective, intent on the part of a possessor of a controlled substance was sometimes discernible in the circumstances surrounding his apprehension? Possession of a large quantity of cash, for instance, might be a circumstance tending to show a commercial motivation. Similarly, packaging .and weight of the substance were among the factors from which an inference might be drawn as to intent.33 Possession of as few as five $20.00 rocks of cocaine was sometimes accompanied by a scheme to deliver, in the officer's experience.34 As noted, at the conclusion of the trial the jury found Defendant guilty of possession of cocaine with intent to deliver, simple possession of cocaine and possession of a small amount of marijuana. Prior to the conclusion of the trial, several evidentiary and other issues arose to which Defendant's motion for a new trial pertains. In this regard, the Commonwealth offered Carlisle Borough Police Detective David R. Fones as an expert witness in the area of controlled substance investigations and drug trafficking.35 Pursuant to an offer of proof, one focus of the questioning was to be his knowledge of factors tending to reflect upon the purpose for which drugs were possessed, such as the manner in which they were packaged? Detective Fones had received a bachelor of science degree in criminal justice from Shippensburg University. Following graduation, in 1984 he had been 3~ N.T. 85. 32 N.T. 89. 33 N.T. 89. 34 N.T. 89. 3~ N.T. 71. 36 N.T. 81. hired as a patrolman for the Borough of Carlisle37 and had attended a 13-week training course conducted by the Pennsylvania State Police for law enforcement officers. The following year, he had been assigned to a tri-county drug task force to conduct drug investigations.38 In 1989, he had been promoted to detective and, since then, had engaged primarily in police drug work.39 Detective Fones had received training in various aspects of criminal drug activity from the Pennsylvania State Police, the Pennsylvania Attorney General's Office, the Pennsylvania Narcotics Officers Association, the Institute of Police Training and Management in Florida, the Drug Enforcement Administration, and an entity called the MACGLOCLEN organization.4° The latter organization conducted an annual week-long conference in Maryland covering "the latest and current trends in narcotics, along with what other things are going on in narcotics along the east coast.''4~ As a law enforcement officer, Detective Fones had initially worked in an undercover capacity, purchasing controlled substances on the street, including cocaine.42 Thereafter, he had assumed responsibility for investigations of drug activity in the Borough of Carlisle.43 He described his duties in this regard as follows: Normally, I work anywhere from at least 50 to 100 drug investigations per year, and that varies in what capacity that may be. Whether it's out in Carlisle controlling a drug investigation. We'll send an undercover officer to an area here in Carlisle, the northwest section of town, which is basically an open-air drug market, have officers try to infiltrate that area, 37 N.T. 76. 38 N.T. 76-77. 39 N.T. 77. 40 N.T. 78. 4~ N.T. 78. 42 N.T. 78. 43 N.T. 79. 7 work with informants, purchase drugs, do search warrants, do surveillance. Basically that's what would [comprise] the 50 to 100 investigations. And also work on the federal investigations also.44 In terms of his familiarity with the particulars of drug transactions, Detective Fones testified as follows: Q Now in your experience in investigating drug related cases, you said you've actually made purchases undercover and you bring other officers or detectives in to go undercover? A That's correct. Q Does any of that require you having any knowledge on the type of drugs, how they're packaged, how they're sold, street value, things of that nature? A Yes, it does. Basically, I'm controlling the investigation. I would provide the undercover officer with the amount of money he needs to purchase. Basically crack cocaine, a piece of crack or a small rock is sold for $20.00. I supply the funds. He would then to out and make the purchase of anywhere from two to five or six rocks from individuals on the street or individuals from a residence, basically bring the cocaine back. I'm required to field test it, package it up, and send it to the lab. Also arrested numerous individuals for possession of cocaine or possession of marijuana, and that would be involved out on the street having interaction with people that have just purchased crack cocaine, and also doing search warrants at residences, seizing cocaine, marijuana, packaging material, cutting agents, scales, things of that nature.45 Detective Fones had been permitted to testify as an expert witness in the area of drug investigations and drug trafficking in state courts in Cumberland County, York County, Dauphin County, and in federal court. The court in the present case permitted Detective Fones to testify as an expert witness in the area of 44 N.T. 79. 45 N.T. 80-81. 8 A number Commonwealth in sustained.5~ drug investigations and drug trafficking,46 and declined a defense request that his testimony be received initially outside the presence of the jury to evaluate its admissibility.47 However, in permitting the detective to testify as an expert in the case, the court specifically precluded his expression of any opinion as to whether, if the circumstances alleged were true, the possession by Defendant would likely have been with intent to deliver, basically confining his testimony as an expert to an expression of factors tending to reflect upon the purpose of possession, such as packaging, street value of the items possessed and so forth? In addition, the court invited Defendant's counsel to object at any point that he felt that a given question or answer exceeded the limit of such expertise.49 of defense objections were made to questions of the response to this invitation? All such objections were In closing argument, the Commonwealth's attorney stated the following, inter alia: ... You heard testimony that when someone purchases drugs, not just one rock of crack cocaine, maybe two rocks, maybe three rocks, maybe more, they get a deal. If it's $20.00 a rock, and they buy three, instead of 60 bucks, maybe they'll be able to purchase it for $50.00. And the idea down the road is, you purchase for less and you sell for more. It's a job. You make money off it. You buy this, maybe a little bit more than this, cocaine, for $150.00, $200.00. You can sell this for $480.00 to $580.00. You make a pretty decent profit. Now who's going to ingest 46 N.T. 81, 83. 47 N.T. 73. n8 N.T. 72-73, 75. 49 N.T. 83. 5o N.T. 86, 87, 88, 92. 5~ N.T. 87, 88, 92. 9 all this crack cocaine when they can make 380 bucks, 400 bucks off of selling it? You heard testimony that a person possesses maybe one to maybe fiVe rocks for his own personal use. I believe Detective Fones counted about 14 rocks? At the conclusion of the prosecutor's argument, Defendant's counsel objected to the last sentence in the quoted passage: MR. ANDREWS: In her argument, Ms. Hamilton says that Detective Fortes said that anybody that had more than one to five rocks does not have it for personal use. If Detective Fones said that, he snuck it past me. I don't think he said that. I don't think that's in this case, and it's improper. And I would want that argument to be corrected. MS. HAMILTON: I had written down in my notes that Detective Fones said, a person with one-- in his experience, a person with one to five rocks of cocaine is used for possession, and I had that written down. I'd have to review the testimony.53 In response to Defendant's objection, the court, while declining to strike the argument from the record,54 gave the following cautionary instruction to the jury: You have heard the arguments of counsel, and as I'm sure you understand, the arguments of counsel are not themselves evidence. To the extent that any argument included an assertion as to what the evidence was, which in your recollection was not correct, then you should disregard that assertion. The arguments themselves are not evidence, and your decisions in the case are to be based solely on the evidence presented.55 DISCUSSION Motion for Judgment of Acquittal As noted previously, the test for sufficiency of the evidence is whether, accepting as true all the evidence and all reasonable inferences arising therefrom 52 N.T. Prosecutor's Closing Argument and Defense Objections Thereto 3. 53 N.T. 5. 54 N.T. Prosecutor's Closing Argument and Defense Objections Thereto 6. 55 N.T. 104. 10 upon which, if believed, the trier of fact could properly have based its verdict it is sufficient to prove beyond a reasonable doubt that the accused is guilty of the crime charged. Commonwealth v. Barnes, 310 Pa. Super. 480, 456 A.2d 1037 (1983). In connection with a charge of possession of a controlled substance with intent to deliver, it is well settled that all the facts and circumstances surrounding the possession are relevant in making a determination as to the defendant's intent. See Commonwealth v. Ramos, 392 Pa. Super. 583, 592, 573 A.2d 1027, 1032 (1990). Factors to be considered in this regard include the amount of controlled substance possessed,56 and the "manner in which the controlled substance was packaged, the behavior of the defendant, the presence of drug paraphernalia, and large sums of cash found in possession of the defendant.''sT Not all of these factors, of course, need be present to prove intent to deliver in a given case.sa Moreover, "[e]xpert opinion testimony is admissible concerning whether the facts surrounding the possession of controlled substances are consistent with an intent to deliver rather than an intent to possess it for personal use." Commonwealth v. Ariondo, 397 Pa. Super. 364, 383, 580 A.2d 341, 350-51 (1990). In the present case, a number of factors militated in favor of a conclusion that Defendant possessed the cocaine in question with the intent to deliver (sell) it to Ms. Rupp. These included the following: the implausibility of a purposeless encounter between Defendant and Ms. Rupp at the time and place in question; the value, quantity and packaging of the cocaine which Defendant was carrying upon his person; the clandestine conduct of Defendant and Ms. Rupp on the occasion, Defendant's display of the drugs to Ms. Rupp and her visual inspection of them; 56 See Commonwealth v. Gill, 490 Pa. 1, 5,415 A.2d 2, 4 (1980); Commonwealth v. Santiago, 462 Pa. 216, 223,340 A.2d 440, 444 (1975). 57 Commonwealth v Jackson, 435 Pa. Super. 410, 414, 645 A.2d 1366, 1368 (1994). 58 Id. 11 Defendant's alarm at being discovered in the process of interacting with Ms. Rupp, his abrupt toss of the canister into a bush; his precipitate flight from the scene, precluding revelation of other items on his person, such as cash; and Ms. Rupp's prompt departure from the scene as Officer Dale pursued Defendant. These factors, considered in conjunction with the expert testimony of Detective Fones, more than supported the jury's conclusion that Defendant possessed cocaine with intent to deliver it, in the Court's view. For this reason, the Court is not able to agree with Defendant's position that a judgment of acquittal with respect to the charge of possession with intent to deliver should be entered. Motion for a New Trial Preview of expert testimony outside presence of jury; offers of proof The conduct of a trial in terms of procedure to be employed is, in general, a matter within the sound discretion of the trial judge. See Commonwealth v. McNeil, 545 Pa. 42, 679 A.2d 1253 (1996) (lower court's denial of defense request for view by jury upheld). Similarly, as a general rule "the admissibility of evidence is a matter addressed to the sound discretion of the trial court .... " Commonwealth v. Claypool, 508 Pa. 198, 203-04, 495 A.2d 176, 178 (1985). The latter rule applies to the admissibility of expert testimony. Commonwealth v. Pitts, 740 A.2d 726 (Pa. Super. Ct. 1999). An offer of proof is a device by which an assessment can be made by the trial judge as to the admissibility of proffered testimony, receipt by a jury of objectionable evidence can be avoided, and a record can be established for purposes of review of a ruling excluding the testimony. Packel & Poulin, Pennsylvania Evidence § 103-5 (2d ed. 1999); see Pa. R.E. 103(a)(2). "An offer of proof must be sufficient to alert the trial judge to the purpose for which the evidence is being offered .... "Commonwealth v. Newman, 382 Pa. Super. 220, 230-31,555 A.2d 151,156 (1989). 12 In the present case, the offer of proof made by the prosecution with respect to Detective Fones' testimony was sufficient for the court to indicate the parameters of his testimony which would be permissible, and it is believed that those parameters were consistent with the admissibility of expert testimony on the subject of intent in drug possession cases. To the extent that the defense felt questions by the prosecution exceeded those parameters, objections were made to the questions and they were sustained by the court without receipt by the jury of the objectionable evidence. To the extent that the court limited the testimony of Detective Fones on the basis of the offer of proof, a record was established for purposes of any review which might have been available to the Commonwealth. For these reasons, it is believed that the offer of proof by the Commonwealth in this case served the purposes for which such offers are made, and the Court did not abuse its discretion in refusing to adopt a procedure whereby the testimony of Detective Fones would be received in the first instance outside the presence of the jury. Consequently, Defendant's motion for a new trial on the ground that the court should have conducted such a proceeding will be denied. Sufficiency of basis for opinions of Commonwealth's expert. As noted previously, expert testimony is permissible in a drug possession case on the issue of intent? As also noted, the admissibility of testimony of experts is, in general, within the sound discretion of the trial court.6° Finally, the interposition of an objection is normally a prerequisite to a finding of reversible error based upon admission of evidence.6~ The training and experience of Detective Fones which, in the Court's view, qualified him to testify as an expert in the area of drug investigations and drug trafficking, have been recounted above. A review of the record indicates that, with the exception of a general defense objection to his testimony based upon the 59 Commonwealth v. Ariondo, 397 Pa. Super. 364, 580 A.2d 341 (1990). 60 Commonwealth v. Pitts, 740 A.2d 726 (Pa. Super. Ct. 1999). 6~ See Commonwealth v. Metts, 447 Pa. Super. 275,298 n.8, 669 A.2d 346, 358 n.8 (1995). 13 alleged insufficiency of the offer of proof, all objections interposed to his testimony were disposed of favorably to the Defendant. Given these circumstances, the Court will not grant a new trial on the ground that testimony of Detective Fones with regard to drug quantities and packaging should not have been received due to a lack of proper foundation. Mischaracterization of evidence by prosecutor in closing argument. With respect to the effect of an alleged mischaracterization of evidence by a prosecutor in closing argument, the Pennsylvania Supreme Court has set forth the following general rule: Our standard of review of this particular issue of prejudice is [as follows]: Only those remarks whose unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict will necessitate the ordering of a new trial. In addition, we note that prosecutors are permitted to argue on closing any reasonable inferences arising from the evidence .... 62 In addition, a curative instruction will often suffice to ameliorate the impact of an inadvertent mischaracterization of evidence by the prosecution. See Commonwealth v. Lawson, 519 Pa. 175,546 A.2d 589 (1988). An examination of the transcript prepared in the present case reveals that Detective Fones, at one point in his testimony, stated that in his experience possession of as few as five $20.00 rocks of cocaine was sometimes accompanied by a scheme to deliver? In closing argument, the prosecutor construed the testimony as suggesting that possession of as many as five rocks of cocaine was indicative of personal use;64 she then observed that Defendant had possessed 14 rocks .65 62 Commonwealth v. Lawson, 519 Pa. 175, 189-90, 546 A.2d 589, 596 (1988). 63 N.T. 89. 64 N.T. Prosecutor's Closing Argument and Defense Objections Thereto 3. 65 N.T. Prosecutor's Closing Argument and Defense Objections Thereto 3. 14 Inasmuch as the testimony of the detective on this point was actually to the effect that possession of as few as five rocks could be consistent with an intent to deliver, it is debatable whether the construction placed upon it by the prosecutor was adverse to Defendant. In any event, the argument did not, in the court's view, exceed the permissible range of inferences which could be drawn from the detective's testimony by counsel. Finally, to the extent that the prosecutor's remark could be deemed an adverse mischaracterization of the evidence with respect to Defendant, the cautionary instruction provided by the court, directing the jury to disregard any statement as to the evidence inconsistent with the jury's recollection, would seem to have been sufficient to cure the problem. For these reasons, Defendant's motion for a new trial predicated upon an alleged mischaracterization of the evidence by the prosecutor in her closing argument will not be granted. ORDER OF COURT AND NOW, this BOth day of April, 2001, upon consideration of Defendant's Post-Sentence Motion, the motion is denied. BY THE COURT, Michelle E. Hamilton, Esq. Senior Assistant District Attorney Taylor P. Andrews, Esq. Chief Public Defender s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 15