Loading...
HomeMy WebLinkAboutCP-21-CR-1587-2005 (2) COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CHRISTOPHER MURPHY : CP-21-CR-1587-2005 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., July 21, 2008:-- January 30, 2008 On , defendant, Christopher Michael Murphy, was convicted by a jury of unlawful possession with intent to deliver a schedule II (cocaine) controlled 12 April 15, 2008 substance, and unlawful possession of drug paraphernalia. On , defendant was sentenced on the charge of unlawful possession of drug paraphernalia to pay the costs of prosecution. On the count of possession with intent to deliver a schedule II controlled substance, he was sentenced to pay the costs of prosecution, a $5,000 fine, and undergo imprisonment in a state correctional institution for a term of 3 not less than two years or more than five years. The Commonwealth and defendant filed direct appeals from the judgment of sentence to the Superior Court of Pennsylvania. In its concise statement of matters complained of on appeal, the Commonwealth avers: 1. The sentencing court imposed an illegal sentence in failing to implement the statutory mandates of 42 Pa.C.S.A. §9712.1. 2. The sentencing court committed an error of law in analyzing the 1 35 P.S. § 780-113(a)(30). 2 35 P.S. § 780-113(a)(32). 3 He was given credit for time served between June 23, 2005 to July 1, 2005, January 30, 2007 to December 11, 2007, and from March 11, 2008 to the date of sentence. CP-21-CR-1587-2005 intent of the statute instead of following the plain language of the statute. “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit”. 3. Finding that “the firearm … was in close proximity to the cocaine”, the court was obligated to sentence the defendant pursuant to 42 Pa.C.S.A. §9712.2. 4. The sentencing court abused its discretion in not finding that the defendant was in control of the firearm. Prior to sentencing, defendant challenged the applicability of the five year April 1, minimum mandatory sentence in 42 Pa.C.S. Section 9712.1(a) to him. On 2008 , an order was entered supported by a written opinion “that the Commonwealth’s notice of mandatory sentence under 42 Pa.C.S. Section 9712.1(a), is dismissed.” That opinion is incorporated herein in support of the judgment of sentence that did not 4 impose a five year mandatory minimum sentence under that section. Defendant filed a concise statement of matters complained of on appeal in which he avers: 1. The court erred in denying defendant’s motion in limine to prevent the Commonwealth from entering a firearm into evidence in its case in chief because: a. there were no substantive charges involving a firearm; b. there was no element of the drug charges that required proof of a firearm; c. there were no fingerprints or other identifying evidence on the gun and so there [sic] no probative value to show ownership of the drugs or the house; and d. the gun was located across the room from the drugs, 4 The two year minimum sentence imposed was a minimum required under 18 Pa.C.S. Section 6317(a)(b), which provides that in this type of drug prosecution, “[t]he defendant shall be sentenced to an additional minimum sentence of at least two years total confinement . . . if the person committed the offense within 1,000 feet of the real property on which is located a public, private or parochial school or a college or university, or within 250 feet of the real property on which is located a recreation center or playground.” There was also a one year mandatory minimum sentence applicable under 18 Pa.C.S. Section 7508(a)(3)(i) because the amount of cocaine that defendant was convicted of possessing with intent to deliver, 2.63 grams, was “at least two grams and less than ten grams.” -2- CP-21-CR-1587-2005 under the floor enclosed by a grate and wrapped in a sock, all of which had no probative value and a significant prejudicial impact on the jury. 2. The court erred in allowing testimony, and denying defendant’s motion in limine, regarding Aponte’s alleged witness of the defendant with drugs a week or two prior to the search: a. the testimony was unreliable due to the passage of time (two years) and the fact that nothing to this effect appeared anywhere in her statements to the police at the time of the search and arrest; and b. allowance of this testimony was improper because it involved unproven bad acts of the defendant. At trial there was evidence that on June 21, 2005, police officers obtained a search warrant to search a house at 414 North Pitt Street, Carlisle, Cumberland County. No one was in the house. After forcibly entering, the officers found, among other things, seven individually wrapped baggies of crack cocaine on the table just inside the doorway of the living room. The total weight of the cocaine in the seven baggies was 2.63 grams. In another section of the living room, under a vent in the floor, the officers found a handgun with a round in the chamber and a fully loaded magazine inserted into the weapon. Lisa Aponte testified that she was a shift manager at a restaurant in Carlisle, where she worked with Jennifer Stoddart, who she first met in May, 2005. Stoddart was the girlfriend of defendant and introduced defendant to her. In June, 2005, Aponte told defendant that she was interested in purchasing crack cocaine so that she could resell it. Defendant told her that she could purchase the cocaine from him. Aponte went to 414 North Pitt Street in June, 2005. Defendant was present. Aponte saw some crack cocaine on a table in the living room. Defendant told her what $20 worth was. He then put it away and asked her for a ride. Later that day, in a phone conversation, defendant told Aponte that he sells marijuana and crack that he obtains weekly in New York or -3- CP-21-CR-1587-2005 from a cousin in Baltimore. The 2.63 grams of cocaine seized by the police in the living room of 414 North Pitt Street formed the basis for the conviction of defendant of the constructive possession with intent to deliver a schedule II controlled substance. In general, “[e]vidence of a defendant’s distinct crimes are not . . . admissible against a defendant solely to show his bad character or his propensity for committing Commonwealth v. Camperson criminal acts . . . .” , 612 A.2d 482, 483 (Pa. Super. 1992). However, evidence of a defendant’s distinct crimes may be admitted to prove IdCamperson intent. . In , the defendant agreed to sell drugs to a third person in exchange for $3,500. Unknown to the defendant, the buyer had been arrested the previous day and was now assisting the police, who had provided him with the $3,500 and were surveilling the transaction. Subsequent to the defendant accepting the $3,500 and arranging to deliver the drugs later that day, he was apprehended following a lengthy car chase and found with 238.8 grams of methamphetamine in his possession. The police then obtained a search warrant for his home where additional controlled substances were found. inter alia The defendant was charged, , with possession of a controlled substance with intent to deliver. Prior to trial, and in response to a motion in limine filed by the defendant, the trial court barred testimony regarding the defendant’s attempt to sell drugs in exchange for $3,500. The Commonwealth appealed. The Superior Court of Pennsylvania reversed and remanded. The Court stated that because the defendant was charged with a crime that involved a specific intent, “it was clearly relevant to show that a few hours before police found controlled substances in [his] residence, he had -4- CP-21-CR-1587-2005 Camperson agreed to sell drugs to a third person.” , 612 A.2d at 484. The Superior Court stated: Here, the Commonwealth is required to prove, inter alia, that the methamphetamine found in the defendant’s home was intended for distribution to others. Although this intent may be proved in several ways, one of the strongest and most compelling pieces of evidence is that the defendant, in fact, had been distributing methamphetamine on the same day on which methamphetamine and cocaine were found in his home. The evidence of his prior conduct, therefore, will not only be important to the Commonwealth but also enlightening to the factfinder. The testimony of Lisa Aponte showed that in June, 2005, defendant was selling cocaine and dealing crack cocaine out of his living room at 414 North Pitt Street, Carlisle. The testimony was relevant to prove that defendant intended to deliver the crack cocaine that was seized in his living room at 414 North Pitt Street on June 21, Camperson 2005. Not only did defendant, like the defendant in , agree to sell drugs not long before controlled substances were seized from the searched residence, he also explicitly admitted to Aponte that he purchased marijuana and crack for the purpose of reselling it. The testimony of Aponte was therefore even stronger toward proving Camperson defendant’s intent to deliver than the testimony in which did not contain a specific admission by the defendant of an intent to deliver. Aponte’s testimony presented some of the “strongest and most compelling pieces of evidence” that the controlled substances found at 414 North Pitt Street were intended for distribution to others. This testimony was not admitted to show defendant’s bad character or his propensity for committing criminal acts but, rather, to prove intent and was therefore properly admitted. A general rule is that where a weapon cannot be specifically linked to a crime, -5- CP-21-CR-1587-2005 such weapon is not admissible as evidence. However, there is an exception to this general rule where “the accused had a weapon or implement suitable to the commission of the crime charged. [This weapon] is always a proper ingredient of the case for the Commonwealth v. Lee, prosecution.” 541 Pa. 260, 274, 662 A.2d 645, 652 (1995) Commonwealth v. Yount, citing 455 Pa. 303, 314 A.2d 242 (1974). “The prosecution need not establish that a particular weapon was actually used in the commission of a Id crime in order for it to be admissible at trial.” . The loaded handgun hidden under the vent on the floor in the same living room where the 2.63 grams of cocaine were found was suitable to the commission of that crime and supported a conclusion that defendant was a drug dealer who, on June 21, 2005, possessed the 2.63 grams of cocaine with an 5 intent to deliver it. Accordingly, there was no error in the admission of evidence that warrants the grant of a new trial. _______________________________ (Date) Edgar B. Bayley, J. 5 The jury was charged that: You should consider all of the evidence and the totality of the circumstances in that evidence in order to determine if the Commonwealth has proven beyond a reasonable doubt that (1) this defendant had constructive possession of any cocaine you may find was seized at 414 North Pitt Street, Carlisle, on June 21, 2005, and if so, (2) whether defendant possessed such cocaine with the intent to deliver it to another person or persons. In this regard you should consider among other things the amount of any cocaine found, where it was found in relation to any place in which defendant or others were located, whether defendant had conscious dominion over cocaine, the power to control it, and the intent to exercise that control, the circumstances under which any cocaine was found, the value of such cocaine, what other evidence was found in the premise of any drug paraphernalia, items used for or intended to be used for any purpose relating to illegal drugs, a loaded handgun and its location, and whether there is any evidence that defendant told anyone else that he was a drug dealer, and/or told anyone else he would sell drugs to that person, and/or anyone else saw defendant with illegal drugs at 414 North Pitt Street, Carlisle. -6- CP-21-CR-1587-2005 Michelle H. Sibert, Esquire For the Commonwealth Gregory B. Abeln, Esquire For the Defendant :sal -7-