HomeMy WebLinkAbout990285 CriminalCOMMONWEALTH
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MARY L. PORTER
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 99-0285 CRIMINAL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., December 30, 1999.
In this criminal case, Defendant was found guilty following a jury trial of unlawful
delivery of a Schedule II controlled substance (cocaine).~ She was sentenced to pa3' the
costs of prosecution, to make restitution in the amount of $60.00, and to undergo
imprisonment in the county prison for a period of not less than three months nor more
than 23 months.2
Defendant filed a post-sentence motion requesting a new trial on the basis of the
weight of the evidence.3 This motion was denied by the court following oral argument.4
Subsequent to the denial of the post-sentence motion, Defendant filed a direct
appeal to the Pennsylvania Superior Court, seeking a new trial based upon the weight of
the evidence.5 The premise of the appeal has been artiCulated by Defendant as follows:
~ See Act of April 14, 1972, P.L. 233, §13(a)(30), as amended, 35 P.S. §780-113(a)(30)
(1999 Supp.). This offense is an ungraded felony, carrying penalties in the form of a fine
of as much $100,000.00 and a prison sentence of as much as ten years. See id.,
§13(f)(i.i), as amended, 35 P.S. §780-113(f)(i.i) (1999 Supp.).
2 Order of Court, June 22, 1999. The minimum sentence was at the bottom of the
standard range under the sentencing guidelines. See Presentence Investigation Report,
June 15, 1999.
3 Defendant's Post-Trial Motion for New Trial, filed July 1, 1999.
4 Order of Court, August 31, 1999.
5 Defendant's Notice of Appeal, filed October 22, 1999.
Superior Court was permitted nunc pro tunc by this court.
22, 1999.
Defendant's appeal to the
See Order of Court, October
Mary I,. l-~orter appeals the decision of this Court on the grounds
that the x'c,?,ict was against the weight of the evidence for the
ihllowing rc~tsons:
a. The only eyewitness presented by the
Commonwealth, Trooper Mark Heft was not well
acquainted with Defendant at the time of the
alleged offense;
b. Contact with the perpetrator of the alleged offense
,,vas limited;
c. Trooper HeWs ability to observe was questioned
by describing Defendant as wearing a purple outfit
in Court when in fact it was blue;
d. ]'he jury failed to give proper weight to
Defendant's reputation testimony.
This opinion in support of the judgment of sentence and of the denial of
Defendant's post-sentence motion is written pursuant to Pennsylvania Rule of Civil
Procedure 1925(a).
STATEMENT OF FACTS
The pertinent evidence at trial in this matter may be summarized as follows.
David R. Fones of the Carlisle Borough Police Department testified that he was a
narcotics detective with the department and was assigned to the Cumberland County
Drug Task Force.6 He enlisted the assistance of Pennsylvania State Trooper Mark Heft
in an undercover capacity, in conjunction with a confidential informant, for purposes of
an investigation of reported drug activity at an establishment in the borough known as the
6 N.T. 16-17, Trial, Commonwealth v. Porter, No. 99-0285 Criminal Term (hereinafter
N.T. ).
2
Carlisle Tavern, among other locations, according to his testimony.7 Arrests arising out
of the investigation were deferred until the investigation was completed, he statedfi
Detective Fones testified that he had, for a number of years, been well acquainted
with Defendant.9 He stated that on or about November 12, 1998, he happened to notice
Defendant outside a residence in Carlisle. On this occasion, he instructed Trooper Heft
(who was in the area with the informant) by radio to initiate a conversation with her, and
he subsequently identified her by name to the trooper, according to his testimony, l0
Detective Fones testified further that on the evening of November 20, 1998, and in
the early morning hours of November 21, 1998, he was acting as a backup for Trooper
Heff, maintaining a discrete distance from the trooper's immediate vicinity.TM At 12:20
a.m. on November 21, 1998, Trooper Heft allegedly bought cocaine from Defendant in
the 200 block of North Pitt Street in the borough, and thereafter delivered the substance
to Detective Fones, according to the detective's testimony.~2 The substance which
Detective Fones said he received from Trooper Heft was admitted as an exhibit and
stipulated to be cocaine.~3
Trooper Heft testified that, prior to the incident in question, in his undercover
capacity he had spoken to Defendant on October 15 or 16, 1998, and on November 12,
1998, and had probably seen her at two other times in the Carlisle Tavern, but had not
7 N.T. 18-19.
8 N.T. 19-20.
9 N.T. 49.
lo N.T. 48-49.
~ N.T. 21.
~2 N.T. 21-22.
~3 N.T. 22, 51-52.
3
spoken to her on those occasions.
knew as Mary Porter,
counsel.''15
Trooper Heft stated that, on the evening of November 20, 1999, a lack of activity
at the Carlisle Tavern precipitated a drive with the informant into an area of the borough
known for drug activity, and that upon their arrival in the area he noticed Defendant
walking by herself.~6 On this occasion, she was wearing her glasses and a brown, winter-
type coat, he said.~7 At this point, according to the trooper's testimony,
A ... We pulled up to the corner, and as soon as we pulled up
she, like, xvalked right toxvards the car, like we met at the same time.
When we stopped she was right at the comer, and, urn, I asked if she
could hook us up.
Q You spoke xvith her?
A Yes. Yeah. The informant never said a word during this
whole entire transaction.
Q And did you just say you asked if she could hook you up?
A Yes.
Q What does that mean?
A In slang terms that means can you get me any drags. Can
you hook us up? Can you supply me with cocaine or marijuana,
without saying specifically the drag.
Q And what did she say to that?
A She said, What do you need. And I said a 50 or 100. It all
depends what it looks like. Meaning, I don't want to pay 100 if it's
small or I don't want--you know, if I am going to get small, I am
going to pay 50. But I told her I would buy 50 or 100, depending on
the amount that she would give me.
~4 He identified Defendant in court as the person he
~'the purple top, black slacks, [sitting] beside her
~4 N.T. 31.
~5 N.T. 30.
16 N.T. 31-32.
17 N.T. 35.
4
Q What do you mean by a 50 or 1007
A Fifty, meaning 50 dollars' worth of crack cocaine. As
Detective Fones testified, three rocks for 50 would be a good deal.
Three rocks for 60 is a regular deal. Each rock is $20.00. And 100
xvould be five pieces, if you are talking $20.00 rocks, is
Trooper Heft testified that Defendant told them to go around the block.19 As they
were on the third leg of this circuit, a female voice yelled "Hey!" and at the corner he saw
a group of five or six people, according to his testimony? The trooper stated that he and
the informant turned the final leg of the trip around the block and pulled the car to the
curb.2~ His testimony continued as follows:
As soon as we stopped the car, Mary Porter walked by
herself to the car, and I was in the passenger seat. And she walked up,
and she said the guy in the red coat has it.
And I said, Well, I am not walking up to that whole bunch
of people by myself. I was worried about safety and being ripped off,
and you know, things like that. Getting robbed more than anything
else, which can happen real quick in a street situation.
And after she said the guy in the red coat has it, I told her I
wasn't going to walk up there. She said, What do you want? What do
you need? And I said, A 60.22
Trooper Heft testified that Defendant walked away, and that he called to her,
"Don't short me too bad," to which she responded, "Come on," as if to disparage the
idea.23 Defendant returned about two minutes later, according to the trooper's testimony,
~8 N.T. 32-33.
19 N.T. 33.
2o N.T. 33-34.
21 N.T. 34.
22 N.T. 34.
23 N.T. 34-35.
and exchanged three bags of cocail'J¢ ,,vifl~ him for the money.24 He stated that the
transaction occurred at 12:20 a m.. thnt IX:t'endant then walked back toward the comer
and he and the informant dro,J,' fi'om thc area, that he radioed Detective Fortes that he had
made a drug transaction, and that at 12:30 a.m. he turned the drugs over to the detective?
In response to a question as to whether he had any doubt as to his identification of
the Defendant as the person he had dealt with. Trooper Hefftestified as follows:
No. I have absolutely no dcubt whatsoever. As I stated, I
observed Mary Porter numerous occasions before the 21st of
November. And I also obsm~,,ed Mary Porter, specifically on
November 25th, in the Oliver Plunkett bar, with Crystal Giles that
evening, and I think I saw here again in the Carlisle Tavern after.
I had probably seen Mary Porter, up to 10 times. And
she's always looked the same as far as, you know, wearing the glasses
and things like that?
Defendant presented alibi testimony of herself and a friend.27 However,
the force of this testimony was somewhat diminished by rebuttal testimony on
the part of a borough police officer which tended to show that the alibi related
to a date different from that on which the delivery to Trooper Heft allegedly
occurred.28
Defendant conceded in her testimony that she had seen Trooper Heft on
a number of occasions, noting that he had approached her several times?
24 N.T. 35.
25 N.T. 35.
26 N.T. 37. At least four of these occasions, according to the trooper's testimony,
occurred prior to the drug transaction on November 21, 1998.
27 N.T. 57-97.
28 N.T. 103-08.
29 N.T. 89.
However, she denied that she had sold Trooper Heft cocaine as alleged by the
C ommonwealth.30
The Commonwealth presented impeachment evidence to the effect that
Defendant had been convicted of a summary bad check offense in 1995.3~
Finally, a character witness testified on behalf of Defendant that Defendant did
not have a negative reputation with respect to being law-abiding?
DISCUSSION
"[A] new trial should be awarded when the jury's verdict is so contrary
to lhe evidence as to shock one's sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to prevail."
Commonwealth v. Goodwine, 692 A.2d 233,236 (Pa. Super. Ct. 1997), appeal
denied, 700 A.2d 438 (Pa. 1997). However, "a determination [as to the
credibility of witnesses] is within the sole province of the trier of fact who is
free to believe all, part, or none of the evidence." Commonwealth v. Jackson,
506 Pa. 469, 475,485 A.2d 1102, 1105 (1984).
In the present case, the question of whether Defendant had been the
individual who delivered cocaine to Trooper Heft was largely a matter of
credibility. Given the evidence that the trooper was acquainted with Defendant
prior to the transaction, that the events of the alleged crime were not
3o N.T. 90.
3~ N.T. 108.
32 N.T. 53-57. On the subject of whether Defendant was wearing a purple or blue "outfit"
during the trial, which is referred to in Defendant's statement of matters complained of
on appeal in relation to Trooper Heff's abilities to perceive, the court has been unable to
locate any reference to the color of her apparel at trial in the transcript other than the
trooper's characterization of her "top" as purple and her slacks as black. See text
accompanying note 15 supra. In any event, the trooper's opinion between purple and
blue as to the color of an item of Defendant's clothing at trial does not appear to the
court to be a significant factor in terms of the weight of the evidence in this case.
particularly brief, that the trooper had seen Defendant on a number of occasions
after the transaction, and that he was unequixoc:t! in his identification of
Defendant as the person with whom he had dealt, the court was not able to
agree xvith Defendant's position that the jury's verdict was so shocking to one's
sense of justice as to compel the award of a new trial so that right could be
given another opportunity to prevail.
Office of the District Attorney
For the commonwealth
James K. Jones, Esq.
7 Irvine Row
Carlisle, PA 17013
Court-Appointed Attorney
for the Defendant
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