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HomeMy WebLinkAboutCP-21-CR-0002705-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-2705-2008 : : CHARGE: 1. CRIMINAL CONSPIRACY TO : UNLAWFUL DELIVERY, MANUFACTURE, : OR POSSESSION WITH INTENT TO : DELIVER A SCHEDULE I AND/OR II, V. : CONTROLLED SUBSTANCE; : 2. UNLAWFUL DELIVERY OR : MANUFACTURE OR POSSESSION WITH : INTENT TO DELIVER A SCHEDULE II, : CONTROLLED SUBSTANCE – COCAINE : 3. UNLAWFUL DELIVERY OR : MANUFACTURE OR POSSESSION WITH : INTENT TO DELIVER A SCHEDULE I, : CONTROLLED SUBSTANCE : ROMELL THOMPSON : OTN: L442499-1 : AFFIANT: TPR. JAMES BORZA IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Ebert, J., December 14, 2009 - On June 25, 2009, a jury found Defendant Romell Thompson guilty of the above charges. On September 4, 2009, Defendant filed Post-Sentence Motions for New Trial and the Request for Transcription of the trial testimony, which this Court denied on September 25, 2009. On October 16, 2009, Defendant appealed the jury verdict with the following Concise Statement of 1 Matters Complained of at Trial: 1. The verdict of the jury was against the weight of the evidence because there was insufficient evidence to convict the Defendant of possession with intent to deliver a controlled substance (2 counts) including, but not limited to, where the contraband was found in a hotel room in a black satchel that was zipped shut which was found in a hotel room not rented by Defendant. 2. There was no physical evidence that linked the Defendant to the contraband found in the zipped black satchel. 1 Concise Statement of Matters Complained of at Trial, filed Oct. 16, 2009. 3. There was insufficient evidence to convict the Defendant of criminal conspiracy possession with intent to deliver a controlled substance (two counts). 4. The convictions of Defendant were against the weight of the evidence. 5. There was not sufficient evidence upon which to convict the Defendant of criminal conspiracy or possession with intent to deliver a controlled substance (two counts). 6. The verdicts of guilty were based solely on conjecture and not upon the existence of sufficient and probative evidence. FACTS On October 3, 2008, Pennsylvania State Trooper Borza, while working with the Cumberland County Drug Task Force, along with a confidential informant, executed a controlled 2 buy of heroin in Silver Spring Township. The heroin was purchased from Shalonda Jenkins at a 3 Wal-Mart parking lot in Silver Spring Township. After the purchase, Trooper Borza and other officers followed Ms. Jenkins back to the Travelodge motel in Middlesex Township where she 4 was staying and arrested her in the parking lot after watching her complete another drug sale. Trooper Borza obtained a search warrant to search Ms. Jenkins’s room. In the room, officers 5 found a black duffel bag which contained heroin, a bag of cocaine, cash in the amount of 67 $1,000, and a man’s wallet. Trooper Borza recognized $700 of the $1,000 found in the bag as 89 “buy money” from the controlled buy earlier in the day. The wallet belonged to Defendant. 10 Three bags of marijuana, baggies, and a digital scale were also found in the room. Defendant 11 was in the room when Officer Dale entered the room to secure it during the search warrant. Trooper Borza interviewed the Defendant, and Defendant stated that he knew heroin was being 2 Notes of Testimony, Jun. 24, 2009 17 (hereinafter N.T. ___). 3 N.T. 17. 4 N.T. 27. 5 N.T. 37. 6 N.T. 35. 7 N.T. 38. 8 N.T. 35. 9 N.T. 39. 10 N.T. 39. 11 N.T. 100. 2 sold from the room and that Defendant and Ms. Jenkins had brought heroin from New Jersey to 1213 sell in Carlisle. Defendant was placed under arrest at that time. Defendant was found guilty of all charges at a jury trial on June 24-25, 2009. 14 Ms. Jenkins, a twenty-five-year-old college student, testified that she drove Defendant about three hours from Essex County, New Jersey, to the Travelodge in Middlesex on 15 October 2. Ms. Jenkins and Defendant have been involved in a relationship on and off for 16 about four years. Defendant is thirty-two years old. The day before the approximately 180 mile trip from New Jersey to Carlisle, Ms. Jenkins testified that Defendant had been in the 17 emergency room with “walking pneumonia” and that she picked up medicine for him. Ms. Jenkins said that she arranged the drug deal in the Wal-Mart parking lot while Defendant 18 remained in the hotel room. Detective Kurtz of the Carlisle Borough Police Department has worked for the last seven years on the Cumberland County Drug Task Force and has received specialized training in 1920 narcotics trafficking. Detective Kurtz testified as an expert in narcotics trafficking and explained to the jury that it is common for drug traffickers to travel with someone, to have 21 someone drive them to an unknown area, and to have someone there as protection. He also explained to the jury that it is common in drug deals for one person to remain in a hotel room or 22 stash house to protect the cash and drugs while the other person is out doing drug transactions. 12 N.T. 43. 13 N.T. 43. 14 N.T. 138. 15 N.T. 151-152. 16 N.T. 139. 17 N.T. 139. 18 N.T. 141. 19 N.T. 105. 20 N.T. 106. 21 N.T. 117. 22 N.T. 117. 3 DISCUSSION A. Sufficiency of the Evidence Defendant maintains that the evidence presented at trial was insufficient to convict him of the charges of criminal conspiracy and possession with intent to deliver a controlled substance. Specifically, Defendant contends that evidence was insufficient because the contraband was found in a zipped duffel bag in a room not rented by Defendant and because there was no physical evidence linking Defendant to the contraband. The law is well-established that a jury verdict will not be disturbed as long as there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. The facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Com. v. Bostick, 958 A.2d 543, 559- 560 (Pa.Super.2008) (citing Commonwealth v. Smith, 956 A.2d 1029, 1035-36 (Pa.Super.2008). Furthermore, the Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Com. v. Ingram, 926 A.2d 470, 474 (Pa. Super. 2007) (citing Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super.2001). The trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced is free to believe all, part, or none of the evidence. Id. The Commonwealth is entitled to the benefit of all reasonable inferences to be drawn from the evidence. Id. Defendant claims that because he did not rent the hotel room in which the contraband was found and because there was no “physical evidence” linking him to the contraband, the jury’s verdict was against the weight of the evidence. Simply because the hotel was not rented in the Defendant’s name does not mean that he could not have possession of the contraband found 4 within the room. Defendant also claims that there is no physical evidence linking him to the contraband. The Defendant told Trooper Borza that he wished to cooperate in future drug investigations, and for that reason Trooper Borza did not fingerprint the drug packages in question. When controlled substances are not found on the person of the accused, the Commonwealth must prove constructive possession, which means that the person had the ability and intent to exercise conscious control or dominion over the substance. Com. v. West, 937 A.2d 516, 524 (Pa. Super. 2007) (citing Commonwealth v. Dargan, 897 A.2d 496, 503, 504 (Pa. Super. 2006). The jury was instructed on constructive possession and on circumstantial 23 evidence. Although no drugs or paraphernalia were found on the Defendant, the jury could have reasonably concluded that Defendant was in constructive possession of the controlled substances in the room. The Commonwealth presented evidence that Defendant’s wallet was 24 found inside the duffel bag where the contraband was found. The bag was not secured in any way other than a zipper. The bag was found easy visible and accessible in the room when officers entered. The jury reasonably concluded that, based on the circumstances, Defendant had the ability and intent to exercise control or dominion over the substances found in the bag. He certainly had the opportunity and freedom to access the contents of the bag at any time. Trooper Borza also testified that during his interview with the Defendant, the Defendant told him that he 25 had come to Carlisle with Shalonda Jenkins for the purpose of selling heroin. The drugs were packaged in a way that was consistent with selling, not with personal use. There was no paraphernalia found in the room to indicate that any of the drugs were being used for personal use. Ms. Jenkins drove Defendant three hours from New Jersey to Carlisle for the 23 N.T. 179. 24 N.T. 39. 25 N.T. 43. 5 purpose of making drug sales. Defendant was aware that heroin was in the bag and was being sold from the room. Ms. Jenkins was arranging the drug deals while Defendant stayed in the room to watch over the rest of the drugs and the money. Ms. Jenkins chose to testify on behalf of Defendant, but until Defendant’s trial began she did not tell any law enforcement personnel 26 that Defendant was not involved in the drug deals. The jury reasonably concluded that these circumstances, taken together, satisfied the elements of the crimes charged against Defendant. Ms. Jenkins told the story that the Defendant, who was in the hospital the day before with “walking pneumonia,” rather than recuperate at his home in New Jersey drove with her 180 miles just to stay in a Travelodge motel room in Carlisle without any knowledge of her illegal activity. Again, the trier of fact, while passing upon the credibility of witnesses and the weight of evidence produced is free to believe all, part, or none of the evidence. Commonwealth v. Ingram, 926 A.2d 470 (Pa.Super. 2007). Jenkins’ account is simply not credible and for this reason alone the jury could have easily chosen to disregard all of her testimony. CONCLUSION The Defendant was in the hotel room by himself when the contraband was found. His wallet was found in the bag with the contraband and money from the drug sales. He told Trooper Borza that he knew that heroin was brought from New Jersey and was being sold from the hotel room. Ms. Jenkins is young college student who drove the Defendant to Carlisle from New Jersey for the purpose of selling drugs and arranged the drug sales while he stayed in the room that she rented to guard the drugs and the money. The jury was free to evaluate all of the circumstances presented by the Commonwealth as evidence of the Defendant’s guilt. The presence of direct physical evidence linking Defendant to the contraband is unnecessary if the 26 N.T. 161. 6 jury believed that circumstantial evidence proved his guilt. In considering all of the evidence and circumstances presented, the jury properly found Defendant guilty of all charges. By the Court, M. L. Ebert, Jr., J. Jaime M. Keating, Esquire First Assistant District Attorney Michael D. Rentschler, Esquire nd 28 N. 32 Street Camp Hill, PA 17011 Court-appointed Counsel for Defendant 7