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HomeMy WebLinkAboutCP-21-CR-0002553-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : ROBERT BRUCE MCKINLEY : CP-21-CR-2553-2008 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., December 3, 2009:-- On August 12, 2009, defendant, Robert Bruce McKinley, was convicted by a jury 1 of unlawful possession with intent to deliver a schedule I controlled substance (heroin), 2 unlawful possession of a schedule I controlled substance (heroin), and unlawful 3 possession of drug paraphernalia (glassine packets). On October 6, 2009, defendant was sentenced for unlawful possession with intent to deliver a schedule I controlled substance, to pay the costs of prosecution, a $25,000 fine, and undergo imprisonment in a state correctional institution for a term of not less than five years or more than ten 4 years, with credit from September 26, 2008 to October 2, 2008. For unlawful possession of drug paraphernalia, defendant was sentenced to pay the costs of prosecution. No sentence was imposed for unlawful possession of a schedule I __________ 1 35 P.S. § 113(a)(30). 2 35 P.S. § 113(a)(32). 3 35 P.S. § 113(a)(16). 4 The five year minimum sentence was a mandatory sentence. CP-21-CR-2553-2008 controlled substance which merged with the count of unlawful possession with intent to deliver the same controlled substance. Defendant filed a direct appeal from the judgments of sentence to the Superior Court of Pennsylvania. In a concise statement of matters complained of on appeal, he avers: The Commonwealth failed at trial to prove the chain of custody of the substance seized to the time of the lab analysis and therefore the following was not established by a reasonable doubt: 1. That the substance that was analyzed was the same substance that was seized; and 2. That the substance that was seized remained unaltered following the seizure. For the above reasons the jury verdicts were not supported by sufficient evidence as a matter of law. The evidence in a light most favorable to the Commonwealth was as follows. On September 25, 2008, Sergeant Anthony DeLuca of the Pennsylvania State Police stopped a vehicle in North Newton Township in Cumberland County for speeding on the Pennsylvania Turnpike at 74 miles per hour in a 65 mile per hour zone. The vehicle was operated by defendant. There were no passengers. As Sergeant DeLuca was walking toward the right side of the vehicle he saw an object coming out the passenger side window. The object went down an embankment which Sergeant DeLuca went over to, looked down, and saw a plastic baggie. After backup came Sergeant DeLuca went down the embankment and recovered the plastic bag. Later, the vehicle was searched pursuant to a warrant. The white shopping bag on the rear seat contained five boxes totaling approximately 500 glassine packets. Kristen Clemens, a forensic scientist, works in the Bureau of Justice Services -2- CP-21-CR-2553-2008 Forensic Laboratory for the Cumberland County District Attorney. On August 6, 2009, Trooper Long of the Pennsylvania State Police brought to her for testing an item marked as Commonwealth Exhibit 2. The package was sealed. The contents had previously been tested at the Pennsylvania State Police Laboratory. The laboratory sticker number was H08-10302-1 from PSP Newville – T05-5027101. The Pennsylvania State Police evidence envelope contained the following data. The accused was McKinley, Robert B. The incident number was T05-5027101. The property log number was T05-2444. The investigating officer was Sgt. A. DeLuca. Badge No. 5252. The contents were described as “3 Plastic Bag Containing Suspected Heroin.” An attached transmittal document from the Pennsylvania State Police to the PSP laboratory, to which the laboratory attached a sticker number, H08-10302-1, was from Sgt. A. DeLuca, Troop T New Stanton. The location of the offense was North Middleton, Cumberland County on September 25, 2008. The accused was Robert McKinley, date of birth 8/22/78. The Prop. Inv. No. was T05-2444. The incident number was T05-5027101. The contents were described as “3 Plastic Bag w/Suspected Heroin.” Kristen Clemens did not review the PSP laboratory report generated as a result of that testing before she tested the substances in the package. Her testing showed that the contents contained 97.47 grams of heroin, a schedule I controlled substance. Sergeant DeLuca testified: Now, I’m going to show you what’s been marked as Q. -3- CP-21-CR-2553-2008 Commonwealth’s Exhibit 2. The substance was identified by Ms. Clemens yesterday. Can you identify – what’s inside that bag, is that the substance you found dropped over the embankment? The substance in the heat sealed is the substance A. becauseI could identify it by the chunks of the blocks of the heroin, also the plastic, like a sandwich baggieabove that, and inside there is what the heroin was – it was inside that when I found it over the embankment.I placed the I placed the – when I entered the evidence, sandwich bag with the heroin in it inside this Ziploc bagI sealed ; and it and shipped it that way to our laboratory. Q. Now, the substance was inside a plastic bag, a sandwich bag? A. A sandwich bag. It’s basically a sandwich bag. Q. How is it sealed inside? How was it sealed inside that bag? A. Just knotted up. All they do is twist the top and knot the plastic baggie. Q. And then you put it in that big Ziploc bag? A. Yes, I did, ma’am, yes. (Emphasis added.) Exhibit No. 2, with its transmittal documents, was admitted into evidence. Thus: (1) Sergeant DeLuca identified the contents in Exhibit No. 2 as the heroin: (1) that he recovered having been “dropped over the embankment;” (2) that he placed it in the Ziploc bag; and (3) “shipped it that way to our laboratory.” (2) Sergeant DeLuca’s transmittal document sent with Exhibit No. 2 to the Pennsylvania State Police Laboratory, to which the laboratory attached sticker number, H08-10302-1, identifies the contents as containing the suspected heroin for the offense committed on September 25, 2008 by the accused, Robert McKinley. (3) Exhibit No. 2, which was delivered by Trooper Long to the Bureau of Justice Services Forensic Laboratory for the Cumberland County District Attorney, and tested by Kristen Clemens, contains the Pennsylvania State Police Laboratory sticker number -4- CP-21-CR-2553-2008 H08-10302-1, with the same identification on the original package and the original transmittal document to the PSP laboratory by Sergeant DeLuca. Commonwealth v. Bolden, In 486 Pa. 383 (1979), the Supreme Court of Pennsylvania stated: The law is clear that physical evidence may be properly admitted despite gaps in testimony regarding its custody. We have reasoned that gaps in the chain of custody go to the weight to be given to the testimony, not to its admissibility. (Citations omitted.) Commonwealth v. Alarie, In 378 Pa. Super. 11 (1988), the Superior Court of Pennsylvania stated: In the case of Commonwealth v. Cugnini, 307 Pa.Super. 113, 452 A.2d 1064 (1982) our court addressed the chain of custody problem and the need for a reasonable connection between proffered and true evidence. In Cugnini, our court stated: While the Commonwealth bears the burden of demonstrating some reasonable connection between the proffered exhibits and the true evidence, Commonwealth v. Pedano, 266 Pa.Super. 461, 467, 405 A.2d 525, 528 (1979), it need not establish the sanctity of its exhibits beyond a moral certainty. E.g., Commonwealth v. Miller, 234 Pa.Super. 146, 155, 339 A.2d 573, 578 (1975), aff’d, 469 Pa. 24, 364 A.2d 886 (1976). The Commonwealth need not produce every individual who came into contact with an item of evidence, nor must it eliminate every hypothetical possibility of tampering. Commonwealth v. Rick, 244 Pa.Super. 33, 38, 366 A.2d 302, 304 (1976). A complete chain of custody is not required so long as the Commonwealth’s evidence, direct and circumstantial, establishes a reasonable inference that the identity and condition of the exhibits have remained the same from the time they were first received until the time of trial. Commonwealth v. Oates, 269 Pa.Super. 157, 163, 409 A.2d 112, 115 (1979); Commonwealth v. Miller, supra. Any gaps in testimony regarding the chain of custody go to the weight to be given the testimony, not to its admissibility. Commonwealth v. Bolden, 486 Pa. 383, 388-89, 406 A.2d 333, 335-36 (1979). -5- CP-21-CR-2553-2008 Commonwealth v. Cugnini, 307 Pa.Superior Ct. at 116-117, 452 A.2d at 1065. The key words in the above passage are “reasonable inference.” The Commonwealth must only create a reasonable inference that the chain of custody was not broken in order to introduce the evidence in question. The Commonwealth met this standard in the present case. Any issue regarding the chain of custody went to the weight of the evidence not its admissibility. Sergeant DeLuca identified the heroin in Exhibit No. 2 as being the heroin he seized after the stop of defendant on the Pennsylvania Turnpike on September 25, 2008. The evidence shows that the heroin was unaltered following the seizure and its testing. Accordingly, the evidence was sufficient to prove that the 97.47 grams of heroin was the heroin that defendant threw out of his vehicle after Sergeant DeLuca stopped him on September 25, 2008. (Date) Edgar B. Bayley, J. Michelle Sibert, Esquire For the Commonwealth Taylor P. Andrews, Esquire For Defendant :sal -6-