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HomeMy WebLinkAbout99-1704 CriminalCOMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs : 99-1704 CRIMINAL : : COURTNEY MANNING : IN RE: OPINION PURSUANT TO RULE 1925 On July 31, 1999, the defendant/appellant, Courtney Manning (“Manning”) was a passenger in a white Ford Contour that was pulled over for speeding by Camp Hill police officer Warren Cornelious. Officer Cornelious requested that the driver produce his driver’s license, registration and insurance card. The driver, Eugene Raymond Caudell (“ Caudell”), stated that he did not have a registration card and, instead, produced a rental car agreement. The agreement was in the name of "Lou A. Mitchell." Having discerned Caudell's identity from his driver's license, Officer Cornelious asked Manning if he was the person whose name appeared on the rental agreement. Manning informed the officer that Lou Mitchell was his aunt. At this point in the encounter, the officer detected an odor of marijuana emanating from the car in which Caudell and Manning were seated. Officer Cornelious radioed for backup and, while waiting for his colleague to arrive, asked Caudell and Manning a number of questions. The officer then returned to his patrol car to fill out a traffic citation and to run a check of the driver’s license. This check indicated that Caudell’s license was suspended. Accordingly, citations were issued for both driving under suspension as well as for speeding. In the meantime, Officer Lane Pryor arrived to render assistance. He began to speak to Caudell and Manning who were both seated in the Ford vehicle. At Officer Pryor's request, Caudell exited the Ford. Pryor then proceeded to ask him where the car was from, what the nature of his 99-1704 CRIMINAL relationship with Manning was, and where they were going. Caudell was unable to explain where the car was from and could only identify "the Williamsport area" as their destination. N.T. 28. Additionally, while Caudell claimed that he had known Courtney Manning for approximately three months, he was unable to recall Manning's last name. Officer Pryor then asked Manning to exit the car and proceeded to ask him similar questions. Manning knew neither Caudell's last nor his first name. Manning too, however, stated that Williamsport was their destination. He explained that the Ford had been rented at the Washington/Dulles airport and that Lou Ann Mitchell was his aunt. N.T. 29. Both officers testified that Manning grew increasingly anxious as the encounter wore on. N.T. 15 and N.T. 31. Officer Pryor eventually noticed several golf ball-sized bulges in one of Manning’s socks (Manning was wearing shorts). When Manning realized that Officer Pryor was scrutinizing his sock he pushed the officer and proceeded to run away. Officer Pryor chased Manning for approximately one mile. The chase ended when Manning stumbled over a guardrail along a road and tumbled down a steep embankment. Officer Pryor made his way down the hill , firearm drawn, and encountered Manning at the bottom. Pryor placed him under arrest and, while waiting for the arrival of back-up, noticed a clear plastic bag, a few feet away on the ground. The bag, later opened at the police department, contained twenty smaller plastic bags which, in turn, contained crack cocaine. One of the bags was larger than the others and contained 1.1 grams of cocaine while the other nineteen, uniformly-sized bags cumulatively contained 1.5 grams of cocaine. The total amount of crack cocaine seized was 2.6 grams. Courtney Manning was charged with three off enses: (1) unlawful delivery or manufacture or possession with intent to deliver a schedule II, controlled substance; (2) escape; and (3) resisting arrest. He waived his right to a jury trial. The count of escape was dismissed on a motion for 2 99-1704 CRIMINAL judgment of acquittal. He was found not guilty of resisting arrest but found guilty of possession with intent to deliver cocaine. At the trial, the defendant took the stand. No other witnesses were called on his behalf. The defendant denied that the cocaine found at the scene was his, a contention which the court found incredible. In post-trial proceedings, Manning has since acknowledged that the cocaine belonged to him but contends that it was not possessed for the purpose of delivery but rather for personal use. This defense, of course, was not advanced at the trial. The defendant was sentenced on May 16, 2000. At the sentencing, there was some uncertainty with respect to Mr. Manning's prior record. The district attorney suspected that he had a prior drug trafficking offense in the District of Columbia, but no certified record of that conviction was produced. A prior drug-related offense would have dictated a mandatory minimum sentence of three years. The Commonwealth offered to recommend a sentence of two and one-half to five years with authorization for Manning to participate in the Boot Camp Program. The court explained to the defendant that in the event his prior offense was not a felony conviction, the standard guideline range sentence for the offense at hand was twelve to eighteen months. After taking some time to consider his options and to discuss them with his attorney, Manning accepted the Commonwealth’s offer. He was sentenced to two and one-half to five years in a state correctional institution. On November 13, 2000, the defendant filed a motion for post-conviction collateral relief. He alleged ineffective assistance of counsel. A hearing was eventually held on March 1, 2001. Manning contended that trial counsel’s pretrial preparation was woefully inadequate, that counsel failed to call witnesses on the defendant's behalf, and that, because of his uncertainty about trial strategy, the defendant testified falsely that the cocaine was not his. According to Manning, some of the witnesses which could be called on his behalf would have confirmed that he was an habitual drug user and that the amount of cocaine found on his person was consistent with simple possession rather 3 99-1704 CRIMINAL than possession with intent to distribute. Manning also notes that after sentencing , he learned that, due to his age, he was ineligible for the boot camp. Finally, Manning indicated that he had told his counsel that he wished to appeal. Trial counsel, Austin Grogan, Esquire, took the stand and responded to these allegations. He indicated that he contacted the individuals proposed by Manning as potential witnesses and they declined to testify on his behalf. He indicated that he had had regular contact with the defendant prior to the trial. He had no immediate recall of ever having been asked by Manning to file an appeal to the Superior court. Following the PCRA hearing, we granted the petition to the extent that the defendant was given leave to file an appeal to the Superior Court, nunc pro tunc. Pursuant to the appeal, the defendant filed a statement of the matters complained of which reads as follows: Whether the evidence was sufficient to convict Courtney Manning of unlawful manufacture, delivery, or possession with intent to deliver a schedule two controlled substance when the circumstantial evidence was as consistent with innocence as it was with guilt thereby failing to prove the Commonwealth's case beyond a reasonable doubt. DISCUSSION In order to be convicted under 35 P.S. §780-113(a)(30) of possession with intent to deliver, the Commonwealth must demonstrate that the defendant "both possessed the controlled substance and had an intent to deliver that substance." Com. v. Parsons , 570 A.2d 1328, 1334 (Pa. Super. 1990), Com. v. Davis , 480 A.2d 1035, 1044 (Pa. Super. 1984). Here, Courtney Manning was found by the Court to have possessed crack cocaine. In fact, now, he admits that it was, in fact, his. He argues, however, that the Commonwealth failed to establish an intent to deliver beyond a reasonable doubt. 4 99-1704 CRIMINAL When examining whether a controlled substance was possessed with intent to deliver, the Court must consider all of the facts and circumstances surrounding the possession of the substance. Com v. Robinson , 582 A.2d 14, 17 (Pa. Super. 1990), allocatur denied , 598 A.2d 282 (Pa. 1991); Com v. Ariando , 580 A.2d 341, 350-52 (Pa. Super. 1990), allocatur denied , 592 A.2d 1296 (Pa. 1991). In determining whether there was sufficient evidence to sustain a charge of possession with intent to deliver, all facts and circumstances surrounding the possession are relevant and the Commonwealth may establish the essential elements of the crime by wholly circumstantial evidence. Com. v. Williams , 615 A.2d 416, 419 (Pa. Super. 1992) (citing Com v. Ramos , 573 A.2d 1027 (Pa. Super. 1990)). As in the case at bar, the Williams court was reviewing the sufficiency of evidence to support a conviction for possession with intent, where the appellant had in his possession eight small zip-lock plastic bags of cocaine with an aggregate weight of 5.94 grams, all of which were contained in one larger bag. At trial, an undercover narcotics investigator testified that the amount of the cocaine and the manner in which it was packaged were representative of common packaging for distribution. The Williams court agreed with the trial court's finding that the packaging of the drugs, the large sum of organized cash found on the appellant's person, and the absence of paraphernalia associated with the personal use of cocaine established, beyond a reasonable doubt, that the cocaine was possessed with the intent to deliver. Id. at 419. In the instant case, Courtney Manning was arrested with 2.6 grams of crack cocaine in his possession; of this amount, 1.1 grams were contained in one bag and 1.5 grams were contained in nineteen individual smaller bags, with all twenty of the bags stored in one larger bag. Manning was carrying only $250. However, the record reflects that no drug-use paraphernalia was found either on Manning's person or in the car in which he was riding. 5 99-1704 CRIMINAL The absence of drug-use paraphernalia, where drugs are found to be in the possession of an individual, has been found to be indicative of possession with intent to deliver. Com. v. Robinson , supra , 582 A.2d 14 (Pa. Super. 1990). In the Robinson case, an expert witness opined that "38 vials of crack cocaine possessed by a sober well-dressed occupant of a motor vehicle, in the absence of items conducive to immediate consumption, indicated an intention to deliver." Id. at 17. The Robinson court also held that a jury is free to accept or reject the opinion testimony of an expert witness but that, if accepted, the testimony may provide an adequate basis upon which to conclude that the Commonwealth proved the intent to deliver element of the crime charged. Id . Here, Officer Pryor noted the absence of paraphernalia and testified that the manner of the packaging (i.e., the nineteen small bags) was consistent with what is commonly known on the street as a "twenty bag," or an amount that would sell for $20 dollars. N.T. 40. In Com v. Sherrell , 607 A.2d 767 (Pa. Super. 1992), the defendant appealed his conviction for possession with intent to deliver crack cocaine. There, the appellate court found that the evidence was sufficient to establish intent to distribute or resell some of the crack in the appellant's possession where he was found in possession of one bag containing ten rocks which were all similar in size and shape, he lacked drug paraphernalia to facilitate immediate consumption, and an expert testified that it would be highly unusual to find a drug user in possession of both a single solid chunk as well as a bag of individual crack cocaine rocks. This finding came notwithstanding the fact that the appellant had only a small amount of cash in his possession and he was not observed to be engaged in any conduct consistent with drug dealer rather than drug user behavior. Sherrell is of particular interest given the similarities to the case sub judice with respect to the "packaging" of the crack cocaine: The record reveals that appellant was found to be in possession of two bags of crack cocaine which respectively contained a single chunk weighing 2.97 grams, and ten rocks of approximately the same size 6 99-1704 CRIMINAL and shape, which in the aggregate, weighed 1.88 grams. Id. at 770. Com. v. Torres , 617 A.2d 812 (Pa. Super. 1992) also featured a challenge to the sufficiency of evidence to support a conviction for possession with intent to deliver. There, the court found that the evidence was sufficient to establish intent where seventeen individually wrapped packets of cocaine—with a cumulative weight of 4.63 grams—were found in the appellant's car, each wrapped in corners cut from sandwich bags. Three unopened boxes of sandwich bags were also present but the car did not contain drug paraphernalia commonly associated with the consumption of cocaine and the appellant did not have any such items on his person. Additionally, the appellant was found with $236 in small denominations. The court also found support for the verdict in the testimony of an expert witness who stated that, in his opinion, the above-mentioned factors were indicative of possession with intent, rather than possession for personal use. The court, in arriving at its conclusion, distinguished two cases upon which the appellant was relying by emphasizing that, in those case, use paraphernalia was discovered. Id. at 814. Similarly, in the context of the weight of expert/police officer testimony, in Com. v. Correa , 620 A.2d 497 (Pa. Super. 1993), the court held that a police officer's observation of the appellant in possession of eighteen $20 packets of cocaine, along with expert testimony that such a cache of cocaine was possessed for delivery and not for personal use, was sufficient to sustain the appellant's conviction for possession of cocaine with intent to deliver. In the instant case, the Court also took notice of the fact that Manning was in possession of a pager at the time of his arrest. When asked by the Court about the pager Manning—perhaps aware of the positive correlation between pager possession and drug dealing activity—explained that the device was assigned to his landscaping business and that it was used for customers to leave voice 7 99-1704 CRIMINAL messages while he was "out in the field." The matter of a pager and its use to facilitate drug transactions was considered in Com. v. Nineteen Hundred and Twenty Dollars United States Currency , 612 A.2d 614 ( Pa.Cmnwlth. 1992), wherein the court held that a police officer's testimony that pagers are used to conduct drug transactions satisfied the Commonwealth's burden of proof 1 under the Forfeiture Act. It bears noting, however, that neither Officer Cornelious nor Officer Pryor testified as to the relevance of the pager to Manning's charge of possession with intent. We would be less than candid if we did not point out the problem presented by the comparatively small quantity of cocaine in this case. Under Pennsylvania law, intent to deliver may be inferred from possession of a large quantity of controlled substances. Com. v. Santiago , 340 A.2d 440, 444 ( Pa.Super. 1975); Com. v. Pagan , 461 A.2d 321, 322 ( Pa.Super. 1983); Com v. Bagley , 442 A.2d 287, 289 ( Pa.Super. 1983). Similarly, the absence of intent to deliver may be inferred where only a small amount of the controlled substance was discovered . Pagan , 461 A.2d at 323; Com. v. Gill , 415 A.2d 2, 4. (Pa. 1980) (small amount of controlled substance consistent with personal use, not distribution). [Emphasis added.] Com. v. Smagala , 557 A.2d 347, 351 ( Pa.Super 1989). The Smagala court held that, where the appellant was arrested with 0.8 gram of cocaine in his possession, "a common sense review of the facts reveals unequivocally that the appellant possessed the cocaine for personal use, not distribution." Id. at 352. In reviewing the trial court's decision, the appellate court concluded that the lower court "simply overlooked the fact that there was no evidence presented linking the appellant to current distribution of cocaine; rather, the court focused on the expert testimony that some of the evidence was consistent with drug distribution sometime in the past." Id. at 354. 1 The Forfeiture Act, 42 Pa.C.S. §6801, permits forfeiture of drug related paraphernalia "distributed, dispensed, or acquired" in violation of the Controlled Substance Act. 8 99-1704 CRIMINAL Manning was clearly in possession of a substantially greater amount than 0.8 gram of cocaine; with 2.6 grams he had over three times as much. Nevertheless, the question remains: what constitutes a "small amount?" This inquiry was addressed by the Chester County Court of Common Pleas in Com. v. Culley , 11 Pa. D. & C. 4th 274 (1991), where it was held that the defendant's possession of 1.95 grams of cocaine was sufficient to establish a prima facie case of only possession for personal use, and not possession with intent to deliver. The court made this determination despite the fact that the defendant's cocaine was packaged in ten individual plastic bags folded into small bundles. In addition, the defendant also had $140 in cash in her possession. In arriving at its conclusion the court relied on Smagala , discussed above, and Com v. Bagley , 442 A.2d 287 (Pa. Super 1982). The Bagley court considered an appeal from the Commonwealth where the trial court granted the defendant's motion in arrest of judgment on the charge of possession with intent. The appellate court held that evidence of the defendant having possession of eleven glassine bags containing in all 15.3 grams of heroin was insufficient to support a conviction for possession with intent. In the court's view, the fact that the police search of the defendant, his companions, and his car failed to reveal any drug paraphernalia, cutting instruments, substances, or dilutants, nor any additional heroin, resulted in the absence of the requisite evidence to show that the defendant had delivered any heroin or intended to deliver the quantities of heroin seized prior to his arrest. Id. at 290. Also relying upon the reasoning of the Bagley decision, the court in Com v. Pagan , 461 A.2d 321, 323 ( Pa.Super. 1983), stated that a presumption of possession with intent could not be drawn from the manner in which the controlled substance—marijuana, in that case—was packaged, particularly in light of the absence of any additional drug paraphernalia used in the narcotics trade. 9 99-1704 CRIMINAL The court held that the evidence of the defendant's possession of less than one ounce (19.9 grams) of marijuana was sufficient to sustain a conviction for possession, but not for possession with intent. Compared with other cases in which convictions for possession with intent to deliver were upheld, the amount of cocaine in the instant matter is comparatively small. This bears on the question of whether the conviction can be supported as a matter of law. The grant of a right to appeal nunc pro tunc has afforded the defendant the opportunity to address this issue further. August , 2001 ____________________________________ Kevin A. Hess, J. Jaime Keating, Esquire Chief Deputy District Attorney James K. Jones, Esquire Court-appointed for Defendant : rlm 10