Com. v. George, S.
Com. v. George, S. No. 198 WDA 2016
| Pa. Super. Ct. | Sep 5, 2017Background
- On Jan. 7, 2014 police responded to a domestic dispute; victim Lacy Hass had scratches and red marks and a store surveillance video showed George grabbing her by the shirt/neck and attempting to force her out of a store.
- George fled the scene, was arrested outside his residence at 4805 Dearborn Street, and a search incident to arrest uncovered 55 stamped bags of heroin in his jacket pocket and two cell phones.
- After victim consented, officers searched the residence and found an additional 18 stamped bags of heroin and a handgun in the home.
- The parties stipulated that Detective Fallert would have testified that, based on his training and the facts, George possessed the heroin with intent to deliver; no drug-use paraphernalia was found on George or in the residence.
- At a stipulated non-jury trial George was convicted of PWID and possession of a controlled substance, and convicted of simple assault by physical menace (18 Pa.C.S. § 2701(a)(3)); the sentencing order mistakenly listed the assault as bodily injury (a clerical error).
- Trial court sentenced George to 2–4 years’ incarceration and 5 years’ consecutive probation for PWID; appeal followed after PCRA petitions reinstated his direct-appeal rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for PWID (intent to deliver) | Commonwealth: quantity (55 stamped bags), packaging, two cell phones, and stipulated expert testimony support intent to deliver | George: he was a heroin addict and the amount found was for personal use; no proof of intent to deliver | Court: Evidence sufficient; quantity, packaging, lack of paraphernalia, cell phones, and expert inference supported PWID conviction |
| Sufficiency of evidence for simple assault | Commonwealth: victim’s injuries, store video showing menacing conduct, and victim’s fear supported assault by physical menace | George: trial relied on preliminary-hearing testimony of an officer who did not testify at trial and the video was not admitted | Court: Conviction for simple assault by physical menace upheld; evidence (injuries, video observation, victim fear) was sufficient; sentencing order clerical error corrected |
Key Cases Cited
- Commonwealth v. Best, 120 A.3d 329 (Pa. Super. 2015) (sufficiency-review standard and insulation of factfinder credibility determinations)
- Commonwealth v. Harden, 103 A.3d 107 (Pa. Super. 2014) (standard for reviewing sufficiency of the evidence)
- Commonwealth v. Lee, 956 A.2d 1024 (Pa. Super. 2008) (quantity alone may indicate intent to deliver; if unclear, evaluate other factors)
- Commonwealth v. Brown, 904 A.2d 925 (Pa. Super. 2006) (same principle on quantity and intent to deliver)
- Commonwealth v. Carpenter, 955 A.2d 411 (Pa. Super. 2008) (relevant factors for intent: packaging, defendant behavior, paraphernalia, cash)
- Commonwealth v. Ratsamy, 934 A.2d 1233 (Pa. 2007) (expert testimony admissible to show whether possession is consistent with intent to deliver)
- Commonwealth v. Johnson, 782 A.2d 1040 (Pa. Super. 2001) (affirming PWID where quantity and expert testimony supported distribution inference)
- Commonwealth v. Reynolds, 835 A.2d 720 (Pa. Super. 2003) (elements and sufficiency for simple assault by physical menace)
- Commonwealth v. Repko, 817 A.2d 549 (Pa. Super. 2003) (intent for assault may be inferred from conduct)