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HomeMy WebLinkAboutCP-21-CR-0001674-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-1674-2010 : : ISIAH J. GARRETT : IN RE: NONJURY TRIAL BEFORE HESS, P.J. MEMORANDUM AND VERDICT On April 12, 2010, the Upper Allen Township Police Department was assisting the Harrisburg City Police Detectives in serving two search warrants in Upper Allen Township. During the execution of those warrants, police found Defendant Isiah Garrett at one of the residences. It was learned that Defendant Garret had an active bench warrant from Dauphin County, and he was detained while the searches were conducted. Prior to transporting Defendant, a search incident to arrest revealed the presence of a plastic sandwich bag containing 18 small baggies of what appeared to be marijuana. Additionally, Defendant had $100.00 cash on his person. The baggies were seized as evidence, and Defendant was transported to the Dauphin County Sherriff’s Department. Testing was done on the substances found in the baggies, and the samples indicated a positive result for the presence of marijuana, a Schedule I controlled substance. Defendant was charged at Count I with Unlawful Possession, Manufacture, Possession with Intent to Deliver a Schedule I Controlled Substance – Marijuana, and at Count 2 with Unlawful Possession of a Schedule I Controlled Substance – Marijuana. At trial, the Commonwealth presented expert testimony of a detective who maintained that this number of baggies and the $100 cash indicated that Defendant possessed the marijuana with an intent to deliver. 35 P.S. § 780-113(a)(3) provides that the manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance by a person not registered to so possess is a felony in this Commonwealth (hereinafter “PWID”). Therefore, in order to convict an accused of PWID, the Commonwealth must prove both the possession of a controlled substance and the intent to deliver the controlled substance beyond a reasonable doubt. In determining whether a defendant possessed the requisite intent to deliver narcotics, all facts and circumstances surrounding the possession are relevant in the consideration thereof. Commonwealth v. Jackson, 645 A.2d 1366, 435 Pa.Super. 410 (1994); Commonwealth v. Ramos, 573 A.2d 1027, 1032, 392 Pa.Super. 583, 592 (1990); Commonwealth v. Torres, 617 A.2d 812, 421 Pa.Super. 233 (1992); Commonwealth v. Davis, 480 A.2d 1035, 331 Pa.Super. 285 (1984). The requisite intent may be inferred from the possession of a large quantity of controlled substances. Jackson, 645 A.2d at 1369, 435 Pa.Super. at 413. Conversely, a small amount of a controlled substance supports a finding of an absence of an intent to deliver. Id. (citing Commonwealth v. Gill, 490 Pa. 1, 5, 415 A.2d 2, 4 (1980)); Commonwealth v. Bostick, 2008 PA Super 233, ¶ 29, 958 A.2d 543, 560 (citing Commonwealth v. Lee, 2008 PA Super 205, ¶ 8, 956 A.2d 1024, 1028). If, when considering only the quantity of the controlled substance, it is not readily apparent whether the substance is being used for personal consumption or distribution, Pennsylvania courts look to certain other factors. Jackson, 645 A.2d at 1369, 435 Pa.Super. at 414. The relevant factors for consideration include, “the manner in which the controlled substance was packaged, the behavior of the defendant, the presence of drug paraphernalia, and 2 large sums of cash[.]” Commonwealth v. Koch, 2011 PA Super 201, __ A.3d __, 2011 WL 4336634, 2 (Pa.Super. 2011) (citing Commonwealth v. Ratsamy, 594 Pa. 176, 183 934 A.2d 1233, 1237–38 (2007)). Not all of the factors must be present to prove intent, nor must they be given equal weight. Jackson, 645 A.2d at 1368, 435 Pa.Super. at 414. It is clear, however, that a lack of the aforementioned factors, coupled with a relatively small amount of narcotics, supports a finding of personal consumption rather than intent to distribute. Additionally, expert testimony is helpful to aid in the determination of whether the facts surrounding the possession are consistent with an intent to deliver or consistent with personal use. Ratsamy, 594 Pa. at 182. A trial court as fact-finder in a non-jury PWID case is free to accept or reject the testimony of a party’s expert witness. Lee, 2008 PA Super 205, ¶ 11, 956 A.2d at 1028-29. The packaging of narcotics is but a factor to be considered in conjunction with the others, or their absence, when finding or inferring an intent to deliver. It appears, however, that the relevant case law supports a finding of personal consumption when the only factor present is packaging which at first appears to be consistent with re-sale, yet there exists only a relatively small amount of narcotics. In Commonwealth v. Pagan, 315 Pa.Super. 7, 461 A.2d 321 (1983), the Superior Court reversed a trial court’s conviction of a defendant on a charge of PWID. In that case, the defendant was found with 19.9 grams of marijuana (which is less than an ounce). Id. at 322. The court found that while an inference of intent may properly be drawn from the finding of a large quantity of a controlled substance, so too may the absence of an intent to deliver be inferred where there is only a small amount of a controlled substance. Id. at 323. Additionally, the court found that an inference of an intent to deliver “cannot be drawn from the manner in which the marijuana was packaged, particularly in light of the absence of any 3 additional drug paraphernalia.” Id. (citing Commonwealth v. Bagley, 296 Pa.Super. 43, 422 A.2d 287 (1982) (insufficient evidence of possession with intent to deliver where there was only 15.3 grams of heroin and no other drug paraphernalia or other evidence of an intent to deliver)). The court found that the small amount of marijuana and the ambiguous evidence of paraphernalia in the form of packaging was consistent with personal use; conversely, the court found that the remaining factors were not sufficiently present to support a conviction of possession with intent to deliver. While in Pagan the Commonwealth did not present expert testimony on the issue of intent, that issue is not dispositive as the fact-finder is not bound by expert testimony. It is the examination of all of the factors in toto which must be considered and must establish the requisite intent beyond a reasonable doubt. Applying the foregoing, the Commonwealth has not presented evidence sufficient to prove Defendant’s intent to deliver beyond a reasonable doubt. Defendant was found with 1/2 of an ounce of marijuana, well below the quantity considered to be a “small amount.” 35 P.S. § 780-113(a)(31). Additionally, the fact that the marijuana was found in individual bags as opposed to one single bag is not alone dispositive of the issue of whether Defendant intended to use the marijuana for personal use or for distribution. No evidence of Defendant’s behavior was offered to indicate his intent to distribute the marijuana (for example, there was no testimony that Defendant was observed participating in a drug sale or purchase). No evidence was offered indicating the presence of drug paraphernalia consistent with the sale of narcotics (no other baggies or scales were found). Finally, Defendant was found with $100.00 on him, which is not considered by this court to be a large sum of cash. While the Commonwealth did present the testimony of a detective who maintained that the facts and circumstances indicated otherwise, 4 there being no other evidence of an intent to deliver, the facts of this case do not contain sufficient indicia of intent so as to support a conviction under 35 P.S. § 780-113(a)(3). While one could easily and strongly suspect that Mr. Garrett intended to sell the marijuana in his possession, as a legal matter, the facts and circumstances surrounding his possession of marijuana do not prove an intent to deliver a controlled substance beyond a reasonable doubt. The second count in this case is the possession of marijuana. The defendant was charged under 35 Ps. Section 780-113(a)(16), an ungraded misdemeanor carrying a sentence of one year imprisonment. The defendant is also not guilty under this section because his conduct rose no higher than a violation of 880-113(a)(31), the possession of a small amount of marijuana. VERDICT AND NOW, this day of September, 2011, following trial without a jury, on the counts in the information, the defendant is found NOT GUILTY. BY THE COURT, _______________________________ Kevin A. Hess, P. J. Emily Provencher, Esquire Assistant District Attorney Bryan Walk, Esquire For the Defendant :rlm 5 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CP-21-CR-1674-2010 : : ISIAH J. GARRETT : IN RE: NONJURY TRIAL BEFORE HESS, P.J. VERDICT AND NOW, this day of September, 2011, following trial without a jury, on the counts in the information, the defendant is found NOT GUILTY. BY THE COURT, _____________________________ Kevin A. Hess, P. J. Emily Provencher, Esquire Assistant District Attorney Bryan Walk, Esquire For the Defendant :rlm 7