HomeMy WebLinkAboutCP-21-CR-0000732-2006
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CHARGES: (1-B) UNLAWFUL POSSESSION OF
: SCHEDULE II CONTROLLED
: SUBSTANCE (COCAINE)
v. : (2) UNLAWFUL POSSESSION OF
: SCHEDULE II CONTROLLED
: SUBSTANCE (OXYCODONE)
: (3) UNLAWFUL POSSESSION OF
: DRUG PARAPHERNALIA
RUDOLPH M. :
NICHOLSON :
OTN: K386377-5 : CP-21-CR-0732-2006
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., June 5, 2009.
In this criminal case, Defendant was found guilty following a jury trial of
unlawful possession of a Schedule II Controlled Substance in the form of cocaine,
unlawful possession of a Schedule II Controlled substance in the form of
1
oxycodone, and unlawful possession of drug paraphernalia; the jury was
deadlocked with respect to a charge of possession of cocaine with intent to
2
deliver. He received concurrent standard range sentences totaling not less than six
3
months nor more than 12 months in the Cumberland County Prison.
From the judgment of sentence, Defendant has filed an appeal to the
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Pennsylvania Superior Court. Notwithstanding an order pursuant to Pennsylvania
Rule of Appellate Procedure 1925(b) that Defendant file a statement of errors
1
See Order of Court, January 22, 2009.
2
See Order of Court, January 22, 2009. A mistrial was declared as to that charge. Order of Court,
January 22, 2009. The Commonwealth subsequently indicated that it did not intend to retry
Defendant on the possession with intent to deliver charge. N.T. 4, Sentencing Proceeding, March
3, 2009.
3
Order of Court, March 3, 2009; Presentence Investigation Report, dated February 25, 2009.
Defendant’s continued release on his own recognizance with respect to the present case was
authorized based upon his counsel’s representation that he would be filing a post-sentence motion
and/or perfecting an appeal. Order of Court, March 3, 2009.
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Defendant’s Notice of Appeal, filed April 2, 2009.
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complained of on appeal, none has been filed. Accordingly, the court will proceed
on the assumption that the issue being pursued on appeal is the sufficiency of the
evidence.
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
On a challenge to the sufficiency of the evidence in a criminal case, the
evidence is to be viewed “in [a] light most favorable to the Commonwealth” and
“all reasonable inferences in the Commonwealth’s favor” are to be entertained.
Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354 (1996)
(quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286,
1288 (1984)). The trier-of-fact is “free to believe all, part or none of the evidence.”
Commonwealth v. Petaccio, 2000 PA Super 384, ¶5, 764 A.2d 582, 585 (quoting
Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986)).
Viewed in this light, the evidence adduced at trial in support of the
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prosecution may be summarized as follows. As of Tuesday, April 10, 2007,
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Defendant, who was unemployed, a cocaine addict, subject to an arrest warrant
910
from Lancaster County, and wanted for a parole violation, had been renting and
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living in a room at a certain motel in Middlesex Township, Cumberland County,
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Pennsylvania, since April 2, 2007. At 1:55 p.m. on April 10, 2007, he was
5
Order of Court, April 6, 2009. The order was entered on the docket on April 7, 2009, and
provided that “[a]ny issues not properly included in the statement timely filed and served
pursuant to this order shall be deemed waived.” Id.
6
N.T. 29, Trial, January 20-22, 2009 (hereinafter N.T. __).
7
N.T. 128, 150.
8
N.T. 194-95.
9
N.T. 87.
10
N.T. 209.
11
N.T. 193.
12
N.T. 61.
arrested by law enforcement authorities outside the motel in the presence of a
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known drug user. On his person was $400.00 in cash.
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In Defendant’s room was a female acquaintance, whom police permitted
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to leave. In a safe in his room, the combination of which had been set to
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Defendant’s birth date (0531), police found controlled substances in the form of
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7.06 grams of crack cocaine in a sandwich bag, 3.15 grams of crack cocaine in
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another sandwich bag, .15 of a gram of crack cocaine in a corner of a third
2122
sandwich bag, and four oxycodone pills in a sandwich bag, as well as several
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unused needles. Police also found in Defendant’s room syringes, plastic
25262728
sandwich bags, a razor blade, a used set of digital scales, cell phones, papers
with lists of telephone numbers and numerical figures consistent with a calculation
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of grams, and a push-rod for a crack cocaine pipe.
13
N.T. 33.
14
N.T. 89, 114, 116, 173
15
N.T. 90.
16
N.T. 123, 175.
17
N.T. 128.
18
N.T. 92.
19
N.T. 15, 93, 127.
20
N.T. 16, 93, 127.
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N.T. 17-18, 93, 127.
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N.T. 18-19, 93, 127.
23
N.T. 110.
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N.T. 91, 95.
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N.T. 127.
26
N.T. 127.
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N.T. 91, 109, 148, 168.
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N.T. 107-08.
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N.T. 98, 146.
30
N.T. 140.
Based upon evidence relating to amount, sizes, packaging materials, razor
blade, and digital scales, inter alia, Detective Jeffrey D. Kurtz of the Carlisle
Borough Police Department, the Cumberland County Drug Task Force, and the
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United States Marshals Service opined that the cocaine was possessed with intent
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to deliver.
Defendant testified on his own behalf that, although he had rented the room
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in question and had used the safe, he was in the process of turning it over to the
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female found in the room by police and another individual. He stated that none
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of the drugs, drug paraphernalia, or cell phones found in it was his and that the
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money found on his person was from a trust fund.
As noted, at the conclusion of the jury trial Defendant was found guilty of
possession of cocaine, possession of oxycodone, and possession of drug
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paraphernalia. The jury was deadlocked on the issue of whether the cocaine was
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possessed with intent to deliver, and the Commonwealth indicated at sentencing
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that it would not pursue a retrial on that charge.
DISCUSSION
On a challenge to the sufficiency of the evidence in a criminal case, the
proper test is “whether, viewing the evidence admitted at trial in the light most
favorable to the Commonwealth and drawing all reasonable inferences in the
Commonwealth’s favor, there is sufficient evidence to enable the trier of fact to
31
N.T. 112-13.
32
N.T. 148.
33
N.T. 189.
34
N.T. 198.
35
N.T. 175.
36
N.T. 178, 180, 197.
37
N.T. 174, 193-94.
38
See Order of Court, January 22, 2009.
39
See Order of Court, January 22, 2009.
40
N.T. 4, Sentencing Proceeding, March 3, 2009.
find every element of the crime charged beyond a reasonable doubt.”
Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354 (1996)
(quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286,
1288 (1984). A challenge to the sufficiency of the evidence does not implicate the
weight of the evidence. Commonwealth v. Butler, 2004 PA Super 294, ¶9, 856
A.2d 131, 135.
Under Pennsylvania’s Controlled Substance, Drug, Device and Cosmetic
Act, it is provided that “[t]he following acts and the causing thereof within the
Commonwealth are . . . prohibited:”
Knowingly or intentionally possessing a controlled . . . substance by a
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person not registered under this act . . . .
The use of, or possession with intent to use, drug paraphernalia for
the purpose of planting, propagating, cultivating, growing, harvesting,
manufacturing, compounding, converting, producing, processing,
preparing, testing, analyzing, packing, repacking, storing, containing,
concealing, injecting, ingesting, inhaling or otherwise introducing into the
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human body a controlled substance in violation of this act.
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Both cocaine and oxycodone are Schedule II controlled substances under the act.
Where an item is not found on the person of a defendant, the crime of
possession may be proven on the basis of “constructive” possession. See
Commonwealth v. Clark, 746 A.2d 1128, 1136 (Pa. Super. Ct. 2000);
Commonwealth v. Haskins, 450 Pa. Super. 540, 543-45, 677 A.2d 328, 330
(1996). As stated by the Pennsylvania Superior Court,
In order to prove that a defendant had constructive possession of a
prohibited item, the Commonwealth must establish that the defendant had
41
Act of April 14, 1972, P.L. 233, §13(a)(16), as amended, 35 P.S. §780-113(a)(16) (2008
Supp.).
42
Act of April 14, 1972, P.L. 233, §13(a)(30), as amended, 35 P.S. §780-113(a)(32) (2008
Supp.).
43
Act of April 14, 1972, P.L. 233, §4(2)(i)(4) and §4(2)(i)(1), (2), as amended, 35 P.S. §780-
104(2)(i)(4) and §780-104(2)(i)(1), (2); see N.T. 15, 18, 136. “Oxycodone . . . is a semi-synthetic
opiod agonist derived from thebaine, a constituent of opium.” U.S. Department of Justice,
Drug Enforcement Administration, Drugs and Chemicals of Concern, Oxycodone (2007),
retrieved from http://www.deadiversion.usdoj.gov/drugs_concern/oxycodone/summary.htm.
both the ability to consciously exercise control over it as well as the intent
to exercise such control. . . . An intent to maintain a conscious dominion
may be inferred from the totality of the circumstances, and circumstantial
evidence may be used to establish a defendant’s possession of drugs or
contraband.
Commonwealth v. Gutierrez, 2009 PA Super 55, ¶17, 969 A.2d 584, 590 (quoting
Commonwealth v. Valette, 531 Pa. 384, 388-89, 613 A.2d 548, 550 (1992)).
Under the doctrine of joint possession, the same item may be possessed by more
than one person. See Commonwealth v. Haskins, 450 Pa. Super. 540, 544, 677
A.2d 328, 330 (1996).
Obviously, ownership of, possession of, and/or exclusive access to the site
where an item is located are factors tending to support a conclusion of possession.
See, e.g., Commonwealth v. Haskins, 450 Pa. Super. 540, 677 A.2d 328 (1996). On
the other hand, mere presence in the area where an item is found does not prove
possession beyond a reasonable doubt. Commonwealth v. Thompson, 286 Pa.
Super. 31, 34, 428 A.2d 223, 224 (1981).
Among the circumstances in the present case that tended to support a
conclusion that Defendant had the power to control and the intent to exercise that
control over the cocaine, oxyconton and drug paraphernalia referred to above were
the following: (a) his rental of the motel room in which the items were found; (b)
his admitted use of the safe in which the controlled substances and some of the
paraphernalia were found; (c) the use of his birth date as an access combination for
the safe; (d) his admitted addiction to cocaine; and (e) his presence at the motel at
the time the items were found. These circumstances, in the court’s view, amply
supported verdicts of guilty beyond a reasonable doubt on the possession charges;
the jury was not required to accept Defendant’s exculpatory version of these
circumstances.
For the foregoing reasons, it is believed that the judgment of sentence from
which Defendant has appealed was properly entered.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Michelle H. Sibert, Esq.
Chief Deputy District Attorney
Karl E. Rominger, Esq.
Attorney for Defendant