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HomeMy WebLinkAboutCP-21-CR-2493-2005 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CHARGES: (1) PERSONS NOT TO POSSESS FIREARMS (2) UNLAWFUL POSSESSION OF SCHEDULE II CONTROLLED SUBSTANCE (COCAINE) SHELDON BROOKS OTN: K131137-6 : CP-21-CR-2493-2005 IN RE: DEFENDANT'S MOTION TO SUPPRESS and MOTION TO QUASH INFORMATION BEFORE OLER, J. OPINION and ORDER OF COURT OLER, 1., August 31, 2006. In this criminal case, Defendant has been charged with illegal possession of a firearm and possession with intent to deliver a Schedule II controlled substance (cocaine). 1 F or disposition at this time are Defendant's motion to suppress evidence based upon federal and state search-and-seizure provisions and Defendant's motion to quash the information in the nature of a habeas corpus petition. Defendant's suppression motion seeks to suppress evidence resulting from the execution of a search warrant. The warrant authorized a search of the premises at 140 W. North Street, Carlisle Borough, Cumberland County, Pennsylvania, and was predicated upon an affidavit of probable cause supplied by Carlisle Borough police detective Jeffrey D. Kurtz. The suppression motion challenges the sufficiency of the probable cause affidavit which supported the application for the warrant: The Affidavit. . . makes no mention of observations of illegal activity or contraband inside the house. The Affidavit provided no evidence to the issuing authority to conclude that Mr. Brooks lived at the address searched. There is no indication in the Affidavit that the scene was 1 Information, filed November 16,2005. secured between the arrest of Mr. Brooks and conducting of the search. The affidavit provides absolutely no evidence in support of probable cause to search the residence at 140 W. North Street, Carlisle, PA on May 26, 2005,2005 other than the affiant's conjecture.2 Defendant's quashal motion seeks to quash the information as it relates to both offenses. The motion to quash is in the nature of a habeas corpus petition, and challenges the sufficiency of the evidence to support a prima facie case in terms of the possession of a firearm and of the intent to deliver a controlled substance: The mere presence of the gun is not a crime, or at least not the crime charged. The crime charged is that of possession of the gun by a specific individual, Mr. Brooks and therefore prima facie evidence must include some evidence connecting Mr. Brooks to the gun. None has been presented here. The officer testified [at the preliminary hearing] only that Mr. Brooks was in possession of 2.2 grams of cocaine and cash. No evidence was offered that would indicate sales, or intention to sell. No address books were found. No calls were referenced. No witnessing of people coming and going from the premises. The facts are equally, if not more, compatible with possession for personal use, however there is no sufficient evidence to make a prima facie case for intent to sell? A hearing on the motions was held on July 31, 2006. For the reasons stated in this opinion, both motions will be denied. STATEMENT OF FACTS At the hearing on the motions, both the March 2, 2006, preliminary hearing transcript in the case and a copy of the aforesaid search warrant and accompanying affidavit of probable cause were admitted as Commonwealth's Exhibits 1 and 2. The evidence at the hearing on the motions, in pertinent part, may be summarized as follows: Prior to commencement of the present prosecution, Defendant and a woman named Latonia ("Toni") Nelms were the subjects of an ongoing police investigation, in the course of which purchases of drugs from both Defendants 2 Defendant's Motion To Suppress Evidence and Authority in Support Thereof, filed May 22, 2006. 3 Defendant's Motion To Quash Information, filed May 22,2006. 2 were made.4 "[At] the conclusion of that investigation [the police] had arrest warrants for [Defendant] and Ms. Nelms... .,,5 After undergoing a search incident to his arrest, Defendant was found in possession of $265 in cash and a plastic bag containing "a large chunky substance,,,6 later determined to be 2.28 grams of a Schedule II controlled substance (cocaine). 7 The arrest occurred at Defendant's residence, a house8 at 140 W. North Street, Carlisle Borough, Cumberland County, Pennsylvania. 9 As a result of Defendant's May 26,2005, arrest and search incident thereto, Carlisle Borough police detective Jeffrey D. Kurtz applied to a local magisterial district judge, on the same date, for a warrant to search the said premises at 140 W. North Street.10 The items to be searched for and seized were described as follows: [I]llegal drugs and controlled substances to include but not limited to cocaine and crack-cocaine, drug paraphernalia, proceeds from drug transactions, to include but not limited to US currency.ll The affidavit of probable cause in support of the application read as follows: Your Affiant is Detective Jeffrey D Kurtz, a sworn police officer with the Carlisle Police Department. Your Affiant has been a sworn police officer in Pennsylvania for over twelve (12) years and has been assigned as detective in drug investigations for over two (2) years. Your Affiant has received training from the United State Department of Justice-Drug 4 NT. 34-35, Hearing, July 31, 2006. 5 NT. 34-35, Hearing, July 31, 2006. 6 NT. 1, Commonwealth's Exhibit 1 (preliminary hearing transcript), Hearing, July 31, 2006; NT. 10, 14-15,36, Hearing, July 31,2006. 7 NT. 1, Commonwealth's Exhibit 1 (preliminary hearing transcript), Hearing, July 31, 2006; NT. 10, Hearing, July 31,2006. 8 NT. 13, 31, 35-37, Hearing, July 31, 2006; NT. 1, 5, 9-10, Commonwealth's Exhibit 1 (preliminary hearing transcript), Hearing, July 31, 2006. 9 NT. 1, Commonwealth's Exhibit 1 (preliminary hearing transcript), Hearing, July 31, 2006; NT. 14,35-37, Hearing, July 31,2006. 10 Commonwealth's Exhibit 2 (affidavit of probable cause), Hearing, July 31,2006. 11 Commonwealth's Exhibit 2 (search warrant application), Hearing, July 31,2006. 3 Enforcement Agency (DEA), Pennsylvania State Police (PSP), Pennsylvania Office of the Attorney General (P A OAG), Harrisburg Area Community College (HACC) for both Municipal Police Academy and other follow-up training, and training held for Federal, State and other follow-up training, and training held for Federal, State and Municipal law enforcement officers. Your Affiant is empowered to apply for and execute search warrants for violations of the Pennsylvania Crimes Code (Title 18). Your Affiant has participated in over three hundred (300) drug investigations. On Thursday 26 May, 2005 Patrolman (Ptlm) David Fones, Nicole Dressel, Agent Bruce Doupe, and others served lawfully obtained arrest warrants at 140 W North St, Carlisle Borough, Cumberland county on Latonia Green (Nelms) and Sheldon Brooks. The arrest warrants were PWI-Unlawful Delivery of Cocaine and Unlawful Delivery of Marihuana for Brooks and PWI-Unlawful Delivery of Cocaine for Green (Nelms). After Brooks was handcuffed a search incident to arrest was conducted by Ptlm Fones of Brooks. Found on Brooks' person (in his pockets) was a tied plastic baggie containing a white substance consistent with crack- cocaine, $265 dollars (US Currency) and rolling papers. Brooks was arrested inside 140 W North St, Carlisle where he is living with Green (Nelms). Ptlm Fones summoned Your Affiant to the scene and turned over the recorded evidence. Your Affiant conducted a field test which was presumptive positive for cocame. Your Affiant is requesting a search warrant for the residence of Brooks and Green (Nelms) located at 140 W North St, Carlisle Borough, Cumberland County and any attached or detached outbuildings located at the residence. Your Affiant is requesting the search warrant for illegal drugs and controlled substances to include but not limited to cocaine and crack- cocaine, drug paraphernalia, proceeds from drug transactions, to include but not limited to US Currency.12 The search warrant was executed on May 26, 2005,13 and resulted in the discovery of scales of the digital and non-digital type, marijuana pipes, a .25 caliber handgun, and ammunition. 14 No paraphernalia for the ingestion of cocaine 12 Commonwealth's Exhibit 2 (affidavit of probable cause), Hearing, July 31,2006. 13 NT. 1, 5, 13, Commonwealth's Exhibit 1 (preliminary hearing transcript), Hearing, July 31, 2006. 14 NT. 1-2, 5, Commonwealth's Exhibit 1 (preliminary hearing transcript), Hearing, July 31, 2006; NT. 10, 13,26-27, Hearing, July 31,2006. 4 was found in the search. IS No packaging materials, cutting agents or instruments, address books, or cell phones were found.16 With particular reference to whether Defendant had an intent to deliver the controlled substance which he possessed, expert testimony was presented by the Commonwealth at the hearing from Patrolman David Fones of the Carlisle Borough Police Department. 17 Patrolman Fones, who was referred to in Detective Kurtz's affidavit of probable cause,18 was a 23-year veteran of the department, 19 with at least 18 years' experience investigating drug offenses,20 during which he had become "familiar with the habits and the behaviors and things of that nature for people engaged in the transaction or the use of controlled substances in Cumberland County. . . .,,21 He had testified with respect to his involvement in various drug investigations in a number of courts.22 Patrolman Fones testified that, in a determination of whether a suspect in possession of a controlled substance had the intent to deliver the substance, the following were among the factors of significance: the amount of drug that was found on him, whether or not there was any cash, any packaging material, any scales... [,] anything to smoke crack cocaine or any way to use crack cocaine. .., [and] whether or not any intelligence would be available as to [the suspect's] being a drug dealer or not.23 15 NT. 10, 13, 18, Hearing, July 31,2006. 16 NT. 13, 17-18,21-23, Hearing, July 31,2006. 17 NT. 2, Commonwealth's Exhibit 1 (preliminary hearing transcript), Hearing, July 31, 2006; NT. 9-10,16-17, Hearing, July 31,2006. 18 Commonwealth's Exhibit 2 (affidavit of probably cause), Hearing, July 31,2006. 19 NT. 7, Hearing, July 31,2006. 20 NT. 7, Hearing, July 31,2006. 21 NT. 8, Hearing, July 31, 2006. 22 NT. 7, Hearing, July 31,2006. 23 NT. 9, Hearing, July 31, 2006. 5 Patrolman Fones also noted that normally crack cocaine, when bought for personal use, would come in "rocks" of .25 grams or less?4 Based upon the circumstances of the present case and his expenence, Patrolman Fones opined that the items found in Defendant's residence and on his person (scales, $265 in cash, and a chunk of crack cocaine weighing 2.28 grams) were of the type commonly found where a person intended to distribute the drug and were distinguishable from the types of items that might be found where the person possessed cocaine for personal use?5 More specifically, he expressed the opinion that Defendant possessed the cocaine with the intent to deliver it. 26 With particular reference to whether the firearm was in Defendant's possession, the evidence tended to demonstrate the following facts. The handgun that was found inside the home, as a result of the search, was discovered "in a small rectangular case inside of a storage bin that was underneath a [kitchen] table . . . . ,,27 The storage bin also contained "a number of plastic container[ s] like you would put food in.,,28 A police laboratory analysis of the .25 caliber pistol revealed that the gun was missing a component, that the gun contained no fingerprints,29 and that there was no record of ownership of the gun in P I. 30 ennsy vama. 24NT. 14-15,23-24, Hearing, July 31,2006. 25 NT. 14-17, 23-24, Hearing, July 31, 2006. 26 NT. 9-10,14-18, Hearing, July 31,2006. 27 NT. 5, Commonwealth's Exhibit 1 (preliminary hearing transcript), Hearing, July 31, 2006; NT. 29-30, Hearing, July 31, 2006. 28 NT. 6, Commonwealth's Exhibit 1 (preliminary hearing transcript), Hearing, July 31, 2006; NT. 29-30, Hearing, July 31, 2006. 29 NT. 3-4, Commonwealth's Exhibit 1 (preliminary hearing transcript), Hearing, July 31, 2006; NT. 19, Hearing, July 31,2006. 30 NT. 25-26, Hearing, July 31, 2006. 6 When Patrolman Fones advised Defendant that a gun had been found inside his residence, Defendant responded, "The broken one?,,31 Defendant also "admitted to having the ammunition in the house which was his and [claimed that] he was allowed to have that. ,,32 The house where the handgun was found on May 26,2005, was occupied by Defendant, Ms. Nelms and two children.33 The house had been searched by police on at least two previous occasions, once in December of 2004 and once in 2001 or 2002.34 On those occasions no gun had been found on the premises.35 At the time of the search sub judice, Ms. Nelms was asked if the gun was hers and she indicated it was not. 36 She repeated this disclaimer at Defendant's preliminary h . 37 eanng. DISCUSSION Motion To Suppress In ruling on Defendant's suppression motion, we are guided by well- established principles of federal and state law. The Fourth Amendment to the United States Constitution guarantees that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against umeasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable 31 NT. 4, Commonwealth's Exhibit 1 (preliminary hearing transcript), Hearing, July 31, 2006; NT. 19, Hearing, July 31,2006. It would appear that Defendant will maintain at trial that he was referring to a starter pistol that was also found in the house. NT. 4, Commonwealth's Exhibit 1 (preliminary hearing transcript), Hearing, July 31, 2006. 32 NT. 4, Commonwealth's Exhibit 1 (preliminary hearing transcript), Hearing, July 31,2006. 33 NT. 3, Commonwealth's Exhibit 1 (preliminary hearing transcript), Hearing, July 31,2006. 34 NT. 12-13, Commonwealth's Exhibit 1 (preliminary hearing transcript), Hearing, July 31, 2006; NT. 24-25, Hearing, July 31, 2006. 35 NT. 13, Commonwealth's Exhibit 1 (preliminary hearing transcript), Hearing, July 31, 2006; NT. 25, Hearing, July 31, 2006. 36 NT. 5, 12, Commonwealth's Exhibit 1 (preliminary hearing transcript), Hearing, July 31,2006. 37 Testifying for the defense at the preliminary hearing, Ms. Nelms suggested that the gun may have been left on the premises by her father several years prior to its discovery on May 26, 2005. NT. 8-12, Commonwealth's Exhibit 1 (preliminary hearing transcript), Hearing, July 31, 2006. 7 cause, supported by Oath or affirmation. . . ." Section 8 of Article I of the Pennsylvania Constitution provides that "[t]he people shall be secure in their persons, houses, papers and possessions from umeasonable searches and seizures, and no warrant to search any place. . . shall issue. . . without probable cause, supported by oath or affirmation subscribed to by the affiant." As a general rule, evidence seized in violation of these constitutional limits is subject to suppression. Alderman v. United States, 394 U.S. 165, 171, 89 S. Ct. 961, 965, 22 L. Ed. 2d 176, 188-89 (1969); Commonwealth v. Rood, 686 A.2d 442 (Pa. Commw. Ct. 1996). When, in a suppression hearing, a constitutional right is alleged to have been violated, the burden rests upon the Commonwealth to prove by a preponderance of the evidence that the evidence was not obtained in an unconstitutional manner. Commonwealth v. Eliff, 300 Pa. Super. 423, 428, 446 A.2d 927, 929 (1982). The issue to be determined in this suppression hearing is whether there was "probable cause to believe that the items or property identified [in the search warrant application were] evidence or the fruit of a crime, or [were] contraband, or [were] otherwise unlawfully possessed or subject to seizure, and that these items or property [were] located. . . at the particular place described." Pa. R. Crim. P. 206(6); see Commonwealth v. Edmunds, 526 Pa. 374,404 n.12, 586 A.2d 887, 902 n.12 (1991). Pennsylvania Rule of Criminal Procedure 203(B) reqUIres that the determination of whether a search warrant is supported by probable cause be based on the information within the four comers of the affidavit only. A court may not consider any evidence extrinsic to the search warrant application. See Commonwealth v. Edmunds, 526 Pa. 374, 403-04, 586 A.2d 887, 901-02 (1991). In this regard, Pennsylvania has adopted a "totality of the circumstances test," as articulated in Illinois v. Gates by the United States Supreme Court, for purposes of determining the existence of probable cause. Commonwealth v. Gray, 8 509 Pa. 476, 503 A.2d 921 (1985); see Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). Under this test, the affidavit "should be interpreted in a common sense and realistic fashion." Commonwealth v. Ruey, _ Pa. _, _, 892 A.2d 802, 815 (2006) (citation omitted). Where a person is engaged in certain illegal activities, a suspicion naturally arises that evidence of this activity may be found in his or her residence. See, e.g., Commonwealth v. Iannelli, 430 Pa. Super. 402, 425-26, 634 A.2d 1120, 1131-32 (1990) (illegal gambling activities); Commonwealth v. Gannon, 308 Pa. Super. 330, 337, 454 A.2d 561, 568 (1982) (embezzlement); Commonwealth v. Forster, 253 Pa. Super. 433, 437-38, 385 A.2d 416, 418 (1978) (theft of funds); Commonwealth v. Frye, 242 Pa. Super. 144, 149, 363 A.2d 1201, 1204 (1976) (drug sales). 38 In addition, probable cause for a search of premises for additional drugs is commonly found to exist when an initial discovery of drugs on the premises is made. State v. Paterno, 309 N.W.2d 420,424 (Iowa 1981). In the present case, where the affidavit of probable cause accompanying the application for a search warrant asserted that (1) during a search incident to an arrest Defendant was found to have on his person a plastic bag containing a substance resembling crack cocaine, $265 in cash, and rolling papers, (2) the substance resembling crack cocaine tested positive for cocaine, (3) the place of arrest was 140 W. North Street, Carlisle Borough, Cumberland County, Pennsylvania, and (4) Defendant lived at that residence, it is believed that the facts averred in the affidavit constituted probable cause to believe that "the items or property identified [in the search warrant application were] evidence or the fruit of a crime, or [were] contraband, or [were] otherwise unlawfully possessed or subject to seizure, and that these items or property [were] located. . . at the particular 38 Of course, there must be a reasonable nexus between the activity in question and the place to be searched in order for probable cause to be established. See, e.g., Commonwealth v. Kline, 234 Pa. Super. 12,335 A.2d 361 (1975); State v. Metzner, 338 N.W.2d 799,804 (N.D. 1983). 9 place described." Accordingly, Defendant's motion to suppress based upon a lack of probable cause in the affidavit supporting the application for a search warrant for those premises will be denied. Motion To Quash the Information General. In ruling on Defendant's Motion To Quash the Information, based upon an absence of evidence indicative of Defendant's guilt, our determination is controlled by several principles of law. A motion to quash the information may be granted when the Commonwealth has failed to present a prima facie case against the defendant. Commonwealth v. Santos, 583 Pa. 96, 101, 876 A.2d 360, 363 (2005). In granting a motion to quash the information based upon the sufficiency of the evidence, the court must determine that the Commonwealth has been "unable to establish a prima facie case" against the defendant. Commonwealth v. Meoli, 307 Pa. Super. 50, 53, 452 A.2d 1032, 1034 (1982). A prima facie case is established when "the Commonwealth produces evidence of each of the material elements of the crime charged and establishes sufficient probable cause to warrant the belief that the accused committed the offense." Commonwealth v. Santos, 583 Pa. 96, 101, 876 A.2d 360, 363 (2005) (citation omitted). In this case, the court must determine whether the Commonwealth has adduced sufficient evidence to establish a prima facie case for possession of a firearm and for possession with intent to deliver a controlled substance. Possession of a firearm by person convicted of enumerated crime. The offense of possession of a firearm by a person convicted of an enumerated crime is set forth in Section 6105 of the Crimes Code, which states, in pertinent part, as follows: (a) OFFENSE DEFINED.- (1) A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) shall not possess, use, control, sell, transfer or manufacture or 10 obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth. 39 The purpose of this statute is to protect the public from "a firearm in the possession or under the control of a convicted criminal." Commonwealth v. Appleby, 2004 PA Super. 322, ,-r7, 856 A.2d 191, 195 (2004). In this context, possession may be actual or constructive. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, either directly or through another person or persons, is then in constructive possession. . .. Possession means that the defendant either had physical possession of the firearm on his person or that he had dominion and control over the place where the firearm was located and had the power and intention to exercise control over the place where the firearm was located. us. v. Williams, 344 F.3d 365, 378 (3d Cir. 2003) (citation omitted). If it can reasonably be shown that "the actor owned, possessed or controlled an operable firearm, there is a risk of violence by the firing of a shot, which was the result sought to be avoided by [Section 6105 of the Crimes Code]." Commonwealth v. Layton, 452 Pa. 495, 499, 307 A.2d 843, 845 (1973). A person may be able to control a firearm by directing others to use it for illegal purposes, without physically handling the firearm himself. Commonwealth v. Appleby, 2004 PA Super. 322, ,-r7, 856 A.2d 191, 195 (2004). Similarly, a gun may be said to be under a person's control, even when "the stock, barrel, trigger housing group, or firing mechanism [ are] in different rooms in the same apartment...." Commonwealth v. Layton, 452 Pa. 495, 499, 307 A.2d 843, 845 (1973). In the present case, where evidence adduced by the Commonwealth tended to show ( a) that the gun in question was in a house occupied by Defendant, a woman and two children, (b) that the woman disclaimed any knowledge of the gun, and (c) that arguably Defendant acknowledged his awareness of the gun's presence, it is believed that the Commonwealth has produced sufficient evidence to establish probable cause to believe that Defendant possessed the gun. 39 Act of December 6, 1972, P.L. 1482, ~1, as amended, 18 Pa. C.S.A. ~6105(a)(1) (2005 Supp.). 11 Intent to deliver. The offense of possession of a controlled substance with intent to deliver is described in Section 13(a)(30) of the Controlled Substance, Drug, Device and Cosmetic Act, in pertinent part, as follows: the. . . possession. . . with intent to . . . deliver[] a controlled substance by a person not registered under this act. . . .40 Intent to deliver with respect to a controlled substance may be inferred from circumstances surrounding its possession. Thus, it has been stated that [t]he trier of fact may infer that the defendant intended to deliver a controlled substance from an examination of the facts and circumstances surrounding the case. Factors to consider in determining whether the drugs were possessed with the intent to deliver include the particular method of packaging, the form of the drug, and the behavior of the defendant. . . . Thus, possession with intent to deliver can be inferred from the quantity of the drugs possessed and other surrounding circumstances, such as lack of paraphernalia for consumption. Commonwealth v. Jones, 2005 PA Super. 166, ,-r35, 874 A.2d 108, 121 (2005) (citations omitted). In addition, the opinion of an expert on the subject may be considered,41 as may the defendant's prior history of deliveries.42 Precedent in this area is rather case-specific, as the following samples indicate. In Commonwealth v. Heater, 2006 P A Super. 86, 899 A.2d 1126 (2006), the Pennsylvania Superior Court upheld a defendant's conviction of possession of marijuana with intent to deliver under the following circumstances: Five police officers testified for the Commonwealth. Their testimony established the following: a confidential informant made three controlled purchases of marijuana from Appellant; ten bags of marijuana, containing one-quarter ounce each, as well as two larger, empty bags containing only marijuana residue, were found in a locked safe near Appellant's bed; in the same safe police found $3775 in cash, including $140 in recorded bills which had been supplied to the informant for the controlled buys; in a larger locked safe in Appellant's kitchen, police found $38,310 in cash, which also included some recorded bills from the controlled buys; a triple beam scale and a box of plastic baggies were found in a closed on the second floor of Appellant's residence. Finally, in the safe in Appellant's 40 Act of October 26, 1972, P.L. 1048, ~ 13(a)(30); 35 P.S. ~780-113(a)(30). 41 See, e.g.,Commonwealth v. Waters, 276 Pa. Super. 584,419 A.2d 612 (1980). 42 Commonwealth v. Griffin, 2002 P A Super. 203, 804 A.2d 1 (2002). 12 bedroom, police found a paper on which were written dates, numbers, totals, and dollar amounts, with notations that certain amounts had been paid. One officer testified that in his experience, this paper was consistent with a drug dealer's record of receipts and sales. Id at ~13, 899 A.2d at 1131-32. In Commonwealth v. Clark, 2006 P A Super. 63, 895 A.2d 633 (2006), the Superior Court held that the evidence was insufficient to sustain a conviction for possession of cocaine with intent to deliver under the following circumstances: On March 20, 2004, Sergeant Nicholas Figge of the York City Police Department was on patrol and driving north on South George Street in the city of York when he spotted a red Chevrolet Cavalier. The vehicle was unoccupied at that moment, although two black males were standing beside the car. At lineup, before starting his patrol, Sergeant Figge and other police officers had been alerted that a red Chevrolet Cavalier had been reported stolen. Given the report, Sergeant Figge slowed down while passing the vehicle and glanced at the vehicle's registration number. Since the license number matched that of the stolen vehicle, Sergeant Figge proceeded to the next intersection and made U-turn with the intentional of taking possession of the stolen vehicle. Before arriving at the back of the vehicle, the vehicle pulled away from the curb and began traveling south on South George Street. Sergeant Figge followed the vehicle while it turned west on West Maple Street. Eventually the vehicle stopped in an area know for a high frequency of drug activity. Sergeant Figge activated his emergency lights, pulled up behind the vehicle and shined his spotlight on the vehicle. Sergeant Figge ordered the two occupants out of the vehicle and onto the ground. Appellant was situated in the passenger seat and Appellant's co-defendant, Lamarr Sistrunk, was driving. As the two men were secured on the ground outside the vehicle, backup arrived. Sergeant Figge proceeded to secure Sistrunk who was observed placing an object underneath the vehicle. The object, a plastic bag containing a white chalky substance suspected of being crack cocaine, was retrieved. Officer Shawn Rosier testified that he arrived after the vehicle had been stopped and assisted in the handling of Appellant. Officer Rosier performed a pat down search of Appellant and felt a lump on Appellant's left ankle. Officer Rosier investigated further and discovered a plastic bag containing several pieces of an off-white chunky substance suspected of being crack cocaine. Appellant also possessed a cell phone and approximately $9 in U.S. currency. The suspected crack cocaine later tested positive for cocaine. The combined weight of the pieces of cocaine was 2.5 grams. Appellant and Sistrunk were then arrested. * * * * [An expert called by the Commonwealth], Detective Richard Peddicord, rendered an opinion that based upon the quantity of cocaine, the absence of use paraphernalia, and the presence of a cell phone, that these factors would be more consistent with possession of the drugs with the intent to deliver as opposed to possession for personal use. 13 Id, at ,-r,-r2-3, 9, 895 A.2d at 633-36. In concluding that the evidence was insufficient to prove more than simple possession, the Court noted that the Commonwealth's "case of intent to deliver [rested] upon circumstantial evidence"43 and that "there [was] very little, if any, circumstantial evidence establishing intent to deliver. ,,44 Appellant possessed none of the accoutrements of drug selling. The pieces of cocaine in Appellant's possession were not individually packaged for resale. Appellant possessed no empty plastic baggies or packets or any twist ties or rubber bands which might be used to package crack for sale. Appellant was not seen being approached by any individuals or approaching any individuals which might indicate soliciting and Appellant had virtually no cash on his person from which he might make change if needed. While the above evidence, when present, does not definitively prove that drugs were possessed with intent to deliver, such evidence, if of sufficient quantity and weight, has been held to allow the factfinder to infer the intent to deliver. . .. Here there is [ an] absence of any evidence positively demonstrating intent to deliver. * * * * [W]e note that the weight of 2.5 grams is less than amounts found insufficient to establish intent to deliver in other published cases. . . . [C]aselaw [has] recognized that an "eight-ball," the street term for an eighth of an ounce of cocaine, or 3.5 grams, [is] not an uncommon purchase. In the present case, the weight of the cocaine was less than an eight-ball. * * * * Given the prevalence of cell phones in the United States today, we do not believe the presence of a cell phone can in any form reliably indicate intent to deliver. Id, at ,-r,-r7-9 n.l, 895 A.2d at 635-636 n.1. In Commonwealth v. Ratsamy, 2005 P A Super. 351, 885 A.2d 1005 (2005), the Superior Court held that the evidence was insufficient to sustain a conviction for possession with intent to deliver cocaine under the following circumstances: Appellant was arrested on April 9, 2003 and charged with conspiracy, drug possession charges and weapons charges. At approximately 10:30 p.m. on that day, Philadelphia Police Officers were conducting an undercover surveillance of the 6600 block of W oodland Avenue. The surveillance targeted suspected drug trafficking activity with a focus upon 43 Commonwealth v. Clark, 2006 PA Super. 63, ~7, 895 A.2d 633,635. 44 Id. 14 an individual named Lamont Taylor. While the surveillance was ongoing, Officer Martinez observed Appellant and another man, later identified as Rom Sang, approach Taylor and engage him in conversation. After conversing awhile, Appellant was observed lifting up his T-shirt and removing a handgun. Appellant gestured with the gun in Taylor's direction, after which some laughter broke out, then Appellant put the gun back in his waistband and he and Sang walked toward and then into a restaurant located at 6519 Woodland Avenue. Based upon the observation of a handgun, Officer Martinez radioed backup to apprehend Appellant. In response to the call, several officers converged upon Appellant and Sang inside the restaurant. When Officer Martinez arrived inside the restaurant, he observed the two men on the floor being held at gunpoint. One of the officers, Officer McNorty, searched Appellant and recovered a black handgun loaded with five live rounds, a plastic bag containing a single chunk or "rock" of "crack" cocaine and $349 in currency. Sang was found to be in the possession of some currency and a plastic bag containing 199 plastic packets. Appellant was then arrested and taken into police custody. * * * * [At trial,] the Commonwealth's "expert," Officer Andre Schafer, opined that Appellant possessed the drugs with the intent to deliver. Id at ,-r,-r2, 5, 885 A.2d at 1006-08. In concluding that the evidence was insufficient to prove more than simple possession of cocaine, the Court made the following observation: [W]hen Officer Schafer's testimony is reviewed it is clear that [his] opinion rest[ ed] essentially upon a speculative leap from the size of the piece of crack cocaine in Appellant's possession. This is so because other than the size of the "rock," there is really no evidence that Appellant possessed this piece of crack with the intent to deliver it to another. Appellant possessed no paraphernalia commonly found in the distribution of crack cocaine. Appellant was not seen distributing drugs to another nor was there any testimony from someone indicating that they had previously purchased drugs from Appellant. Id, at ,-r5, 885 A.2d at 1008. Although the present case is obviously a close one, it is believed that the evidence tending to show (1) that Defendant had a history of recent drug sales which culminated in his arrest, (2) that at the time of his arrest Defendant was in possession of 2.28 grams of crack cocaine in an undivided form, (3) that no paraphernalia indicative of personal use of cocaine was found in Defendant's possession, (4) that digital scales and a gun were found in Defendant's residence, and (5) that in the opinion of a police officer knowledgeable about local illegal drug activities the circumstances of the case were indicative of an intent to deliver 15 was sufficient to provide at least the probable cause necessary for a prima facie case against Defendant for possession with intent to deliver. F or the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 31 st day of August, 2006, upon consideration of Defendant's Motion To Quash Information and Motion To Suppress Evidence, and following a hearing held on July 31, 2006, the motions are denied. BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. Daniel 1. Sodus, Esq. Senior Assistant District Attorney Susan K. Pickford, Esq. 3344 Trindle Road Camp Hill, PA 17011-4453 Attorney for Defendant 16 17 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CHARGES: (1) PERSONS NOT TO POSSESS FIREARMS (2) UNLAWFUL POSSESSION OF SCHEDULE II CONTROLLED SUBSTANCE (COCAINE) SHELDON BROOKS OTN: K131137-6 : CP-21-CR-2493-2005 IN RE: DEFENDANT'S MOTION TO SUPPRESS and MOTION TO QUASH INFORMATION BEFORE OLER, J. ORDER OF COURT AND NOW, this 31 st day of August, 2006, upon consideration of Defendant's Motion To Quash Information and Motion To Suppress Evidence, and following a hearing held on July 31, 2006, the motions are denied. BY THE COURT, 1. Wesley Oler, Jr., 1. Daniel 1. Sodus, Esq. Senior Assistant District Attorney Susan K. Pickford, Esq. 3344 Trindle Road Camp Hill, PA 17011-4453 Attorney for Defendant