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HomeMy WebLinkAboutCP-21-CR-0003145-2010COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CHARGE: (2) ATTEMPT TO DELIVER A SCHEDULE I CONTROLLED SUBSTANCE CHARLES CAROTHERS CP -21 -CR -3145-2010 OTN: L592993-2 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., November 29, 2011. In this criminal case, Defendant was found guilty following a jury trial of an attempt to deliver a Schedule I controlled substance, an ungraded felony.' Based upon the contents of a presentence investigation report, he was sentenced to a period of imprisonment in the Cumberland County Prison of not less than six months nor more than 23 months .2 A post -sentence motion filed by Defendant, premised upon the weight and sufficiency of the evidence, was subsequently denied by the court .3 Defendant has now filed a direct appeal to the Pennsylvania Superior Court from the judgment of sentence. The sole basis for the appeal, as expressed in Defendant's statement of errors complained of on appeal, is as follows: There was insufficient evidence to sustain a verdict of guilty on criminal attempt to unlawfully deliver a Schedule I controlled substance in that evidence was insufficient to establish required intent to deliver a Schedule I controlled substance.' This opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). ' Order of Court, dated April 25, 2011. Defendant was acquitted by the jury of simple possession of a Schedule I controlled substance and possession with intent to deliver a Schedule I controlled substance. Id. 2 Order of Court, dated June 14, 2011. Defendant's continued release on his own recognizance pending disposition of his appeal was authorized by the court. Id. ' Order of Court, dated October 12, 2011. 4 Defendant's Notice of Appeal, filed November 9, 2011. ' Defendant's Concise Statement of the Errors Complained of on Appeal, filed November 18, 2011. STATEMENT OF FACTS As a result of an incident occurring on October 27, 2010,6 Defendant was charged with (1) possession with intent to deliver a Schedule I controlled substance, marijuana' (2) attempt to deliver a Schedule I controlled substance, marijuana,$ and (3) simple possession of a Schedule I controlled substance, marijuana.9 A jury trial was held on April 25, 2011, with the undersigned judge presiding. At trial, the Commonwealth called three witnesses: a detective with the North Middleton Township Police Department assigned to the Cumberland County Drug Task Force, Timothy Lively; a forensic chemist employed at the Cumberland County Forensic Laboratory, Kristen Clemens;10 and a North Middleton Township police officer assigned to the Cumberland County Drug Task Force, Richard Grove. Defendant testified on his own behalf but called no other witnesses. Detective Lively's testimony may be summarized as follows: At approximately 10:30 p.m. on October 27, 2010, he and Officer Grove were participating in a drug investigation that was unrelated to the Defendant in the 100 block of North Pitt Street in Carlisle, Cumberland County, Pennsylvania." Both Detective Lively and Officer Grove were in plain clothes and seated in an unmarked Drug Task Force vehicle. 12 To obtain a better view of the subject of their investigation, Detective Lively drove the vehicle "onto a curb" and shortly thereafter Defendant and another individual approached the vehicle. 13 Defendant told the officers that they needed to move their vehicle or else they would get 6 Notes of Testimony 11, 40, 49, Trial, April 25, 2011 (hereinafter N.T. �. 35 P.S. §§ 780-113(a)(30) and 780-115. s 18 Pa. C.S.A. § 901 to 35 P.S. § 780-113(a)(30). 9 35 P.S. § 780-113(a)(16). 10 Kristen Clemens was qualified as an expert in the analysis of controlled substances. N.T. 34. " N.T. 11-12. 12 N.T. 11-12. 13 N.T. 12-13. 2 into trouble with the police. 14 Defendant also told the officers that if they were looking for anything to come see him. 15 Approximately five to ten minutes later, after the original undercover surveillance ended, the officers reengaged Defendant and Officer Grove told Defendant that they were interested if he could get something.16 Defendant then gave his cellphone to Officer Grove and Officer Grove gave Defendant one hundred dollars in cash. 17 After the exchange, Defendant argued with the individual he was with and then walked behind a building.18 Defendant returned to the officers' vehicle, got inside the vehicle, and told the officers he would take them to get what they needed.19 Defendant directed them to drive to the 100 block of Lincoln Street, in Carlisle .20 Before leaving the vehicle, Defendant told the officers that he would not give them anything unless they smoked it in front of him. 21 Defendant left the car with the money Officer Grove had given him and headed west on foot.22 The officers then radioed police to notify them of their intent to arrest Defendant upon his return .23 Defendant reappeared within four minutes and, as he was walking toward the vehicle, marked police cars appeared.24 When Defendant saw the police cars, he ran and jumped over a small fence but police managed to apprehend him at gunpoint .25 Detective Lively checked Defendant's pants and found eighty of the one 14 N.T. 13. " N.T. 13. 16 N.T. 14-15. 17 N.T. 15. " N.T. 16. 19 N.T. 17. zo N.T. 17. z1 N.T. 17. zz N.T. 17. 2'N.T. 17. 24 N.T. 17-18. z5 N.T. 18. 3 hundred dollars Officer Grove had given to him .26 Within twenty-five feet of where Defendant was when he was told by the police to stop, two bags containing marijuana were found.27 A few days after Defendant's arrest, he told Detective Lively that he had lost his job and saw the officers as good targets to make money off of28 On cross-examination, Detective Lively testified that $130 was approximately the street value of an ounce of marijuana in Carlisle IV Detective Lively testified that he and Officer Grove did not believe they would receive a whole ounce but would instead receive a lesser amount of marijuana for the hundred dollars .30 Detective Lively also testified that on the night of the arrest one of the Defendant's hands was bandaged and in a metal Splint. 31 Kristen Clemens, a forensic chemist at the Cumberland County Forensic Laboratory, testified that she received the bags found at the scene of Defendant's arrest.32 Based on her analysis, Ms. Clemens testified that the bags contained 4.54 grams of marijuana .33 On cross-examination, Ms. Clemens testified that she did not perform a fingerprint analysis on the bags.34 The testimony of North Middleton Township Police Officer Richard Grove may be summarized as follows: On the day in question, he and Detective Lively were working undercover on a drug operation that was unrelated to Defendant, when they were approached by Defendant and another individual.35 Defendant told the officers that if 26 N.T. 18. 27 N.T. 18. 2s N.T. 22. 29 N.T. 27. so N.T. 27. 31 N.T. 23. 32 N.T. 34-35; see N.T. 19. " N.T. 37. 34 N.T. 38. " N.T. 40. 11 they needed anything to let him and the other individual know.36 After the original undercover investigation ended, the officers drove to where Defendant and the other individual were, and Defendant approached the officers to ask what they were looking for.37 Officer Grove told Defendant they were looking for marijuana and Defendant asked how much they were looking for.38 Officer Grove asked Defendant how much he could procure and Defendant replied that an ounce of marijuana would cost $130.39 Officer Grove then told Defendant he had only $100 and Defendant said he could get the officers something but it would not be as much as an ounce .40 Following this conversation, Defendant handed Officer Grove his cellphone as collateral while Officer Grove gave Defendant $100.41 During the exchange of the money, the other individual remarked that Defendant was a police officer and Officer Grove responded to this comment by hesitating. 42 At this point Defendant and the other individual argued and Defendant said that he was just trying to make money and the other individual was going to ruin everything for him.43 Defendant then left for a few minutes and, upon returning, entered the officers' vehicle and said he would take them to where he could get them marijuana.44 After they had driven a few blocks, Defendant told the officers that they would have to smoke the marijuana in front of him.45 Defendant left the vehicle, walked down the street, and disappeared from view. 46 At this time the officers contacted the Carlisle Borough Police 36 N.T. 41. 37 N.T. 41-42. " N.T. 42. s9 N.T. 42. 40 N.T. 42. 41 N.T. 42-43. 42 N.T. 43. 43 N.T. 43. 44 N.T. 43. 4s N.T. 43. 46 N.T. 44. 5 Department 47 Shortly thereafter, Defendant returned and walked toward the officers' vehicle .41 While on his way to the vehicle Defendant looked over his shoulder and began to run .49 Defendant then jumped over a small fence and, as he jumped, Officer Grove saw him make a tossing motion .50 After Defendant was arrested, Officer Grove told police to check the area where he saw Defendant make a tossing motion, and a bag of marijuana was found in that area.si On cross-examination Officer Grove testified that he remained in the vehicle until Defendant was arrested and that the vehicle was thirty-five to forty feet from where Defendant was arrested.52 In his testimony, Officer Grove confirmed that Defendant's hand was bandaged.53 Defendant's testimony may be summarized as follows: He had injured his right hand and, on the date in question, was on medical leave from his work.54 He first saw Officer Grove and Detective Lively when they drove by and he was apprehensive with respect to their vehicle.55 He called to an individual located on a nearby porch and that individual suggested they walk toward the vehicle.56 Defendant reluctantly walked with the individual toward the vehicle .57 When they reached the vehicle the other individual said he knew the occupants of the vehicle, and the individual told the officers that if they needed anything to come see him. 58 The only thing Defendant said to the officers was 47 N.T. 44. 48 N.T. 44. 49 N.T. 44-45. so N.T. 45. 51 N.T. 45. Sz N.T. 47. " N.T. 47. 14 N.T. 49. " N.T. 50-51. 16 N.T. 51-52. 57 N.T. 52. " N.T. 52-53. that they should pull their car off of the curb.59 Defendant and the other individual then left the officers and resumed drinking alcohol on a porch .60 The officers later approached Defendant and the other individual and asked whether the two men could get them something.61 Defendant told the officers that he could and then asked for money.62 Defendant allowed the officers to hold his phone in exchange for $100 and agreed to get marijuana for the officers.63 Defendant argued with the other individual because the other individual wanted to provide marijuana to the officers but Defendant wanted to take the money without delivering drugs.64 The other individual called his uncle and Defendant feared that one or more persons would come to the aid of the other individual .65 Defendant asked the officers for a ride because he wanted to get away from the other individual.66 Defendant entered the officers' vehicle, asked them to drive him a short distance, and then exited the vehicle.67 As Defendant was walking down the street and away from the officers' vehicle, he saw a marked Carlisle Police car and, fearing that he would be arrested for public drunkenness, walked in the opposite direction. 68 Defendant then saw numerous police cars and decided to return to the officers and ask for a ride .69 As Defendant was walking toward the officers' vehicle, he heard engines coming toward s9 N.T. 53. 60 N.T. 53-54. 61 N.T. 54. 62 N.T. 54. 6s N.T. 54. 64 N.T. 55. 6s N.T. 56. 66 N.T. 56-57. 67 N.T. 57. 6s N.T. 57. 69 N.T. 58. 7 him so he stepped over a fence and tried to walk away.70 Defendant later told Detective Lively that he was trying to take the money from him and Officer Grove.71 On cross-examination, Defendant testified that he gave $20 of the money he received from Officer Grove to the other individual as compensation for not delivering marijuana to the officers.' Defendant testified that the street value of four grams of marijuana was approximately $45 or $50.73 Defendant testified that the officers probably would receive an ounce of marijuana for $100.74 Defendant testified that the tossing motion witnessed by Officer Grove occurred when Defendant extended his injured hand to avoid falling on it. 75 At the conclusion of the trial, the jury gave Defendant the benefit of the doubt as to whether he had been proven beyond a reasonable doubt to have had actual possession of the marijuana that the officers had paid for, but did find him guilty of an attempt to deliver marijuana to them.76 DISCUSSION Statement of law. On a challenge to the sufficiency of the evidence in a criminal case, the proper test is "whether viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt." Commonwealth v. Little, 2005 PA Super 251, ¶¶7-8, 879 A.2d 293, 296-97; Commonwealth v. Wallace, 2002 PA Super 367, ¶5, 817 A.2d 485, 490. A guilty verdict is proper if the evidence presented at trial is sufficient to allow the "fact finder to find every element of the crime charged beyond a reasonable 70 N.T. 58. 71 N.T. 59. 72 N.T. 59. 73 N.T. 60. 74 N.T. 60. 75 N.T. 60. 76 Order of Court, dated April 25, 2011. 3 doubt." Commonwealth v. Coleman, 2009 PA Super 229, ¶6, 984 A.2d 998, 1000. The standard applies equally to cases where the evidence is circumstantial and where it is direct, provided the evidence as a whole links the accused to the crime beyond a reasonable doubt. Commonwealth v. Swerdlow, 431 Pa. Super. 453, 458, 636 A.2d 1173, 1176 (1994). A challenge to the sufficiency of the evidence does not implicate a weighing of the evidence. Commonwealth v. Patterson, 2007 PA Super 404, ¶24, 940 A.2d 493, 500 (citing Commonwealth v. Emler, 2006 PA Super 187, ¶7, 903 A.2d 1273, 1276-77). The trier of fact, while passing upon the credibility of the witnesses and the weight to be accorded to the evidence produced, is "free to believe all, part or none of the evidence." Commonwealth v. Smith, 604 Pa. 126, 145, 985 A.2d 886, 897 (2009), cert. denied, 131 S. Ct. 77, 178 L.Ed.2d 50 (2010). Moreover, the facts and circumstances established by the Commonwealth at trial "need not be absolutely incompatible with the defendant's innocence, but the question of any doubt is for the jury unless the evidence `be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances."' Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977) (quoting Commonwealth v. Lihonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943)). With respect to the charge at Count 2 of the Information of Attempt To Deliver a Schedule I Controlled Substance (marijuana), it may be noted that Section 901 of the Pennsylvania Crimes Code, read in conjunction with Section 780-113 of the Controlled Substance, Drug, Device and Cosmetic Act, makes it unlawful for an unauthorized individual to attempt to deliver a controlled substance. See 18 Pa. C.S.A. §901; 35 P.S. §780-113(a)(30). The crime of attempt is committed when a person, with intent to commit a specific crime, performs an act constituting a substantial step toward committing that crime. 18 Pa. C.S.A. §901. The substantial step test focuses on the act(s) the defendant has done and does not focus on the act(s) remaining to be done 0 before the commission of a crime. Commonwealth v. Moss, 2004 PA Super 224, ¶18, 852 A.2d 374, 382-83. With respect to jury verdicts rendered on several related charges, there is no requirement that the verdicts be absolutely consistent, it being the jury's prerogative to extend a measure of leniency to a defendant with respect to some of the charges and also to compromise with respect to the overall result so long as the evidence supports the guilty verdict(s) rendered. Commonwealth v. Miller, 441 Pa. Super. 320, 326, 657 A.2d 946, 948 (1995) (citing Commonwealth v. Swann, 431 Pa. Super. 125, 128, 635 A.2d 1103, 1105 (1994) (inconsistent verdicts permissible provided verdict supported by evidence)); Commonwealth v. Gillen, 2002 PA Super 131, ¶14, 798 A.2d 225, 230 (inconsistent verdicts consistent with jury's "sole prerogative" to decide on which counts to convict in order to provide defendant with sufficient punishment). Application of law to facts. Viewed in the light most favorable to the Commonwealth, the evidence tended to show, inter alia, that Defendant (1) negotiated a sale of marijuana with the buyers, (2) provided his cellphone to the buyers as collateral for the transaction, (3) accepted money in exchange for a promise to deliver the marijuana, (4) proceeded to return to the buyers following a brief absence (as opposed to simply absconding with the money), (5) fled when a police presence interrupted the interaction with the buyers, and (6) did so in proximity to marijuana suitably packaged for delivery. Given that the jury was not required to believe Defendant's explanation for his conduct, the court was satisfied that the evidence was more than sufficient to support a finding beyond a reasonable doubt that Defendant had the requisite intent to deliver a controlled substance and had taken a substantial step toward the commission of the crime. BY THE COURT J. Wesley Oler, Jr., J. 10 Matthew P. Smith, Esq. Chief Deputy District Attorney Timothy L. Clawges, Esq. Chief Public Defender 11