Loading...
HomeMy WebLinkAboutCP-21-CR-0030-2004 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. MICHAEL J. WASHINGTON : CP-21-CR-30-2004 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., November 22,2004:-- On July 7, 2004, a jury convicted defendant, Michael J. Washington, of unlawful possession with intent to deliver a schedule II, controlled substance,1 and criminal conspiracy to unlawful possession with intent to deliver a schedule II, controlled substance.2 On October 5, 2004, defendant was sentenced on the count of possession with intent to deliver a schedule II, controlled substance, to pay the costs of prosecution and undergo imprisonment in a state correctional institution for not less than three years or more than five years to date from February 13, 2003.3 On the count of criminal conspiracy, defendant was sentenced to pay the costs of prosecution. Defendant filed a direct appeal from the judgment of sentence to the Superior Court of Pennsylvania. In a concise statement of matters complained of on appeal, he avers: 1. The trial court erred in admitting a handgun at trial, where such 1 35 P.S. S 780-113(a)(30). 2 18 Pa.C.S. S 903; 35 P.S. S 780-113(a)(30). 3 A mandatory minimum sentence was three years. As to the maximum sentence of five years, see Commonwealth v. Bell, 537 Pa. 558 (1994). CP-21-CR-30-2004 evidence was either irrelevant as to the charge of conspiracy, or if relevant then overly prejudicial to the appellant. 2. The trial court improperly denied defense counsel's requested jury charge on mere presence as it relates to a conspiracy, and failed to offer any limiting instruction to the jury on the insufficiency of mere presence to convict on conspiracy. The evidence at trial, in a light most favorable to the Commonwealth, was as follows. On December 12,2003, at approximately 7:50 p.m., in the Borough of Carlisle, Cumberland County, the police provided a confidential informant with two marked twenty dollar bills. The confidential informant then went into 120 West North Street. The informant returned in two minutes and handed narcotics to an officer. The police then obtained a search warrant for 120 West North Street. A team of officers went to the residence where an officer knocked on the front door and announced that it was the police with a search warrant. No one came to the door. The officer looked through a crack in a window blind and saw people running up steps. The front door was breached and several officers entered the residence. An officer who remained outside saw a male start to come out an upstairs window. The officer drew his revolver and ordered him not the move. Scattered throughout the room inside the front door, the police found $974, much of it in twenty dollar bills. There were four cell phones in the room. Some of them were ringing. Next to an arm on a couch there was a .38 caliber loaded handgun. In an upstairs bedroom the police found Marcus Fields, Shawn Scott, Leon Gillespie and defendant, Michael Washington. Gillespie was standing at the window where he had been ordered to stay by the officer who was outside. Defendant -2- CP-21-CR-30-2004 was on the floor. About a foot away from his head was a plastic bag containing fifty smaller baggies of crack cocaine. Defendant had on his person $788 in cash, mostly in twenty dollar bills, which included the two marked twenty dollar bills that had been used by the confidential informant earlier in the evening to purchase narcotics in the residence. The fifty baggies of crack cocaine totaled 5.51 grams. The street value of a gram of cocaine in Carlisle is about $100. As to defendant's claim that the court erred in admitting into evidence the loaded .38 caliber revolver that was found on the couch in the living room, the trial court's rulings on evidentiary questions are controlled by the discretion of the court. Commonwealth v. Foy, 531 Pa. 322 (1992). In Commonwealth v. Walter, 489 A.2d 265 (Pa. Super. 2004), the Superior Court of Pennsylvania stated: "Before any evidence is admissible in a criminal proceeding, it must be competent and relevant." "Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or supports a reasonable inference or presumption regarding the existence of a material fact." (Citations omitted.) Even relevant evidence is subject to exclusion if its probative value is substantially outweighed by the danger of unfair prejudice or confusion. Commonwealth v. Boyle, 498 Pa. 486 (1982). The Commonwealth produced expert testimony that the way the fifty baggies of crack was packaged showed that it was for sale. It would be very unlikely for a person who was just using crack cocaine to have that much packaged that way. The Commonwealth maintained that 120 West North Street was a crack house where the -3- CP-21-CR-30-2004 people inside conspired to process cocaine with an intent to deliver. The presence of a loaded gun on a couch in the downstairs room where a large amount of money was scattered, with (1) people in the house having fled upstairs after learning the police were outside, (2) defendant having the fifty baggies of crack next to him, and (3) defendant having $788 on his person, mostly in twenty dollar bills, including the two twenty dollar bills used by the confidential informant earlier that evening to purchase narcotics, all constituted competent, relevant evidence which logically tended to establish that this was a crack house where cocaine was possessed with an intent to deliver, and that there was a conspiracy among the men to deliver that cocaine. The probative value of the gun in support of those reasonable inferences was not outweighed by a danger of unfair prejudice or confusion. In Commonwealth v. Hawkins, 701 A.2d 492 (Pa. 1997), the Supreme Court of Pennsylvania stated: When reviewing a challenge to a part of a jury instruction, the Court must review the jury charge as a whole to determine if it is fair and complete. Commonwealth v. Saunders, 529 Pa. 140, 144, 602 A.2d 816, 818 (1992). A trial court has broad discretion in phrasing its charge and can choose its own wording so long as the law is clearly, adequately, and accurately presented to the jury for its consideration. Only where there is an abuse of discretion or an inaccurate statement of the law is there reversible error. See Commonwealth v. Prosdocimo, 525 Pa. 147, 150, 576 A.2d 1273,1274 (1990). The complete charge to the jury on the two crimes for which defendant was -4- CP-21-CR-30-2004 charged, was:4 As to the unlawful possession with intent to deliver cocaine, in order to find defendant guilty of this offense, you must be satisfied beyond a reasonable doubt that, one, he possessed the cocaine in Commonwealth Exhibit No.2; that is, that he had the power to control it and the intent to control that cocaine; and, two, that he did so with the intent to deliver it to another person or persons. The term intent to deliver requires intent of a person to make an actual transfer from himself to another person of that cocaine, Commonwealth Exhibit No.2. On the charge of criminal conspiracy, for defendant to be guilty of the crime of criminal conspiracy to the possession of cocaine with intent to deliver it, and we're talking about that cocaine, Exhibit No.2, you must be satisfied beyond a reasonable doubt, one, that defendant agreed with another person or persons that he would engage in conduct which constituted that crime or that defendant and another person or persons agreed to aid each other in the commission of that crime and; two, that defendant did so with the intent of promoting or facilitating the commission of that crime, and that crime is possession with intent to deliver cocaine. In order for a person to be convicted of criminal conspiracy, an overt act in pursuance of that conspiracy must have taken place. While conspiracy requires an agreement between two or more persons, the agreement need not be formal or explicit. It is not necessary that the persons meet with each other or state in words or writing what the scheme is or how it will be carried out. The agreement may be whole or in part a tacit, unspoken agreement. A conspiracy in a proper case may be inferred from the relationship, conduct and circumstances of the persons so long as you are satisfied beyond a reasonable doubt that every element of the crime of criminal conspiracy was committed. So to repeat myself again, defendant is charged with the possession of cocaine with intent to deliver it. In order to find him guilty of this offense, you must be satisfied beyond a reasonable doubt that he possessed the cocaine in Commonwealth Exhibit No.2; that is, he had the power to control and the intent to control that cocaine; and, two, that he did so with the intent to deliver it to another person or persons. The term intent to deliver requires intent of a person to make the 4 The reference to Exhibit No.2 in the charge is to the fifty baggies of crack cocaine. -5- CP-21-CR-30-2004 actual transfer from himself to another person or persons; and secondly, on the charge of criminal conspiracy, it is the same offense except that in this case the Commonwealth is additionally alleging that he entered into a conspiracy with a person or persons with the intent to deliver the cocaine as I have described criminal conspiracy, and it is the cocaine in Commonwealth Exhibit No.2. (Emphasis added.) This charge fully and adequately covered crimes for which defendant was charged. There was no error. Date Edgar B. Bayley, J. Jaime M. Keating, Esquire For the Commonwealth Ellen K. Barry, Esquire F or Defendant :sal -6-