*1
Superior Pennsylvania. Court
June Dean, John Anthony J. Pittsburgh, for Lalama, J. pellant. Hickton, Eberhardt, Atty.,
John J. Dist. Robert L. Atty., Pittsburgh, appellee. Asst. Dist. JACOBS,
Before Judge, WATKINS, President and HOFFMAN, CERCONE, PRICE, der VAN VOORT SPAETH, JJ.
PRICE, Judge. April 17, 1975, appellant On guilty was found judge sitting jury without a of a controlled to de- (heroin)
substance in ar- (heroin).2 liver a controlled substance Motions judgment rest trial were denied and for a new term June to a was sentenced *2 twenty- imprisonment of months eleven and one-half the three months on of conviction simple posses- to deliver. on the conviction of Sentence suspended. sion was appeal.
Appellant points alleged raises of error two However, appellant’s argument court err- the lower in admitting opinion testimony ed in not raised was post-trial therefore, must, consider motions and we 418, waived. Pa. 326 Clair, 458 argument, (1974). remaining We find convic- that the sustain the evidence was insufficient deliver, without tion of to be therefore, judgments will, merit the and we affirm sentence of the lower court. 1974, at 22,
The facts indicate that on November proximately p. Pittsburgh m., Detective 9:20 Police Ralph reliable from information a McDaniel received “a carrying confidential informant was other way bunch of stuff” to meet several on his was persons. accom- partner, Detective his McDaniel and in panied by Avenue informant, drove to Centre appel- Pittsburgh pointed out where the informant alley in automobile. standing lant near white Buick a approached officers, they After the left informant appellant. However, appellant seat got the rear into pur- away. The officers Buick and it driven was five stopped four sued car and after Buick leaning noticed blocks. Detective McDaniel he legs if putting his forward and his hands between trying something When to hide seat. 1972, 233, 64, § April 14, (35 § 780-113 1. Act No. P.L. (a)(16)). 64, April 14, 1972, (35 P.S. 780-113 Act of No. P.L. (a)(30)). car, the detective the interior of the examined he bag containing half-spoons a on the appellant’s legs. floor between A further search measuring Buick at station two revealed spoons glove compartment in in the small scale registered one of driver, trunk. Buick to the appellant’s co-defendants. elementary sup-
It is is sufficient “[e]vidence port accepting if, a conviction as true all the evidence (if all arising reasonable inferences therefrom which believed) properly its factfinder could have based verdict, beyond it is sufficient law to reason- guilty able doubt that defendant the crime convicted, (citations omitted).” Com- Kinnard, monwealth v. in the we so the evidence When view bar, support
case at we find it *3 convic- sufficient the tion. supreme that, proper
Our court has held under the facts circumstances, quan- of a sufficient tity drug permit of a narcotic will the the inference that possessor drug. had an intent deliver the Common- wealth Santiago, 462 Pa.
Although
quantity
Santiago
con-
involved in
siderably greater
case,
than that
in
feel
the instant
we
bring
here
Santiago
facts
this case
reason-
under the
ing.3
Hill,
In
(1975),
We officer, McDaniel, Detective called the Commonwealth expert as an stated that Detective McDaniel witness. assigned nine division for had been to the narcotics many years, for narcotics and that he had made arrests during year previous He this arrest. violations drug acquainted showed an culture and well drugs in-depth knowledge of the street value testified, drug Detective McDaniel habits of users. on direct examination: (Assistant Attorney) ADAMS: District
“BY MR. you Q. have a normal user of heroin that Is there your police officer? work as a narcotics A. Yes. for us?
Q. you that normal user Could describe usually, had contact, came in A. The normal I capsules; days, it small two, in the old one spoons. three, day, two, possibly half this one or gonna for hisself. guy it use This is for a that’s Q. Okay. you made
Now, you to us how could relate just you have user that to the observation described? made, the the arrests I made based
A. of arrests. number many arrests users
Q. how Approximately, *4 preceding year November you made 1974,—
A. Just—
Q. —Approximation ? year? one in that Just
A.
Q. Yes. way over know, probably fifty, I over be It had A. fifty.
Q. years many And were there nine more in the that
you have been a narcotics officer? More I care
A. than to remember.
Q. Okay. you concerning
Now, people have arrests made subsequently possession who were convicted of substance,— with deliver controlled A. Yes.
Q. —namely, heroin ? Yes,
A. sir. Q. year preceding 22, 1974, In the November could give
you approximation me many of how ar- you people rests made who were subse- quently convicted of to de- liver a controlled substance?
A. a more That’s difficult It’s several answer.
dozen. Q. years officer, Now, you in the that were
prior year just eight mentioned, previous approximately, many years, how arrests you people were made concerning who arrested subsequently that were convicted possession with intent to deliver? keep
A. In the I say, hundreds. As I don’t accu- rate —It was well in the hundreds.
Q. your Now, prior arrests, you give based could opinion
us an as to the amount that Harris Mr. you give opinion contained? Could us an particular or not whether this it individual had his own use or whether he intent to deliver ? MR. SHULGOLD: objected
This is to, please. if the Court I do not capable think the answering witness is question.
MR. ADAMS:
Well, opinion. think, I entitled I am to ask him.an MR. SH.ULGOLD: speculation.
It would sheer be MR. ADAMS: think, expert. qualified I have him as an
THE COURT:
He has testified now.
MR. SHULGOLD:
He is not a user.
THE COURT: necessarily
No, but to hear from a does not doctor sick, something about a disease have be testifying. Objection is overruled.
BY THE WITNESS: experience my informa-
A. on arrests Based and and narcotics, in- tion I know about amount me that volved here is sixteen would indicate to an in- not for because of amount would be person. dependent It indicate use of that would this amount to me lead me to believe being to used for another and that purpose, per- you, not sell or distribute what sonal use.
BY MR. ADAMS:
Q. 84-87). Okay. you.” (NT Thank testimony considered detective’s lower court more than that the amount use, personal person for his would be carried to de- appellant guilty of it is the exclusive “The is well settled that liver. law credibility upon pass province of the trier of facts their testi- weight to be accorded witnesses finding mony. . . . will disturb such We erroneous, peal unless manifestly it is (citations omit- *6 ted).” Garvin, 258, 269, 448 Pa. 293 33, say We finding cannot that this “manifestly erroneous.” judgments
The of sentence are affirmed. J., HOFFMAN, opinion dissenting -files a in which SPAETH, joins. J., Judge
HOFFMAN, (dissenting). Appellant’s sole contention is that the Commonwealth’s evidence prove possessed insufficient to that he of heroin with intent to deliver. facts, The exceptions, undisputed: with minor At p. m., 9:20 22, Ralph McDaniel, plain- 1974, November police clothes employed by Pittsburgh officer Police Department, tip received a from a informant confidential appellant carrying wrapped “a bundle of stuff in silver foil” going and was down the street to “meet some dudes.” McDaniel and Detective Norman Stewart picked up the informant and drove to Avenue. Centre pointed The informant appellant, out the who was stand- ing near parked just a white Buick off Avenue. Centre After dropping informant, police off returned parked police appellant car. approached, got As the into the rear of the away. vehicle and was driven The police followed the they car for several before blocks stopped they As it. approached, McDaniel observed pellant place something beneath the rear seat. McDani- el’s search containing netted bag a brown sixteen “half- spoons” of heroin. A subsequent search at head- quarters measuring spoons glove uncovered two in the compartment and a small scale in the of trunk the Buick. registered The driver, car was to the one of two co-defendants. Hill,
1. See (1975): ‘half-spoon’ “. .a of heroin consists of about grams of the $25.00 substance and sells for on the street.” April 17, 1975, appellant’s On suppress motion physical denied; evidence was jury after a waiver trial, the same court suppression which heard the motion appellant guilty found of a controlled substance2 and with intent to deliver.3 On June was sentenced to terma imprisonment charge to 23 months on the 111/2 deliver; sentence was sus pended possession charge. on the only appeal
The
issue
whether
Common-
requisite
wealth’s evidence was sufficient
(a) (30).
intent under 35
780-113
properly
simple pos-
guilty
admits that he was
780-113(a)(16).
session under §
*7
question
There is no
must
Commonwealth
prove every essential element of a criminal offense be-
yond
358,
Winship,
In re
U.S.
reasonable doubt.
397
(1970);
15 (1973). time, At the same such inferences however, suspicion cannot be based on mere surmise. Com- Simpson, (1970); 459, monwealth v. 436 Pa. v, Clinton, Commonwealth 137 A.2d Pa. (1958). Finally, proof if of an essential element evidence, based on evidence must be circumstantial “the reasonably naturally justify such ‘as an inference guilt of the of such accused . . . and volume quality presumption as to overcome innocence ” Townsend, . .’ 428 Pa. appel- In the case, instant we start with the fact that possessed only “half-spoons” lant The of heroin. witness, McDaniel, Commonwealth’s Officer testified that a normal user of heroin from would need one day, heavy three but that a would consume much more than that. The Commonwealth laboratory report containing introduced the the results of tests conducted on the heroin back found beneath the seat of the Buick: glasseen envelopes
“1. Four total which held a [sic] grams speckled powder powder. 1.4330 of tan The envelope in each contained heroin. packets
“2. foil Twelve aluminum total held a 3,4968 grams speckled powder. powder of tan packet each heroin.” contained *8 The testimony concerning Commonwealth introduced no purity the relatively of the heroin. If the heroin were pure, tend, it would least, drugs at to that the indicate just drug traffic, entered the because and users seldom receive unadulterated the that heroin, likelihood appellant was a thereby trafficker would be increased.4 4. The purity Commonwealth’s extremely witness testified that is deciding many relevant in “half-spoons” how requires: a user “Q. [by heavy defense counsel]: ... a that with habit, habit, kind of heavy a between a a hundred hundred and day using and a a packets half four day, would be to half six a spoons? only proof po-
The the other of intent deliver the was person lice officer’s belief that found with sixteen a personal using not be them for use. would Further, McDaniel testified that he did not know Officer heroin. whether the addict or a user of theory is, That the the Commonwealth did advance non-user, increasing the thereby awas probability possessed drugs he the because engaged drug in traffic. Pennsylvania no in case which announces distinguish fixed line mere between In with deliver.
Hill, Pa.Super. 572, (1975), this Court 346 A.2d drugs on trafficking sustained a conviction for in based “half-spoons”. Hill fifteen facts up paucity readily distinguishable point the are “Turning to facts of in instant the evidence case: pro- our evidence was case it also clear that sufficient jury on the duced at trial so to enable the to convict charge ‘trafficking.’ with were found Both defendants persons. The quantities of heroin on their substantial appellants packaged glassine bags in packaged neatly process transferring in were time from into the vehicle at substances the residence to contain of their The residence itself was found arrest. commonly bags large quantity glassine measuring package Several used and sell narcotics. premises. quantity of spoons on A also found were person de- Both of Izear Hill. quinine was found person.” large on their of cash fendants had amounts 573-576, at 315-16.5 at question , really answer again, . “A. . . I can’t There here, percentage play what because a lot into comes pos- is; and, well, percentage, I could low would be a stuff if it agree with you; percentage, I cannot sibly agree high if it’s a you.” Hill, was af- conviction Despite quantity of evidence only by a court. firmed divided *9 Although police measuring spoons two a case, within scale in the Buick in the instant neither was ap appellant’s possession links or control. No evidence pellant they properly items, with those intro were only against appellant’s duced at trial co-defendants. See, Fortune, Pa. (1974); Tirpak, Pa. (1971). plausible equally It is purchased his narcotics from his as it co-defendants drug
is together that all three men were involved in illicit traffic.
Thus, appellant stands in- convicted of tent to speculation deliver on the concern- officer’s ing what drug usage daily normal addict’s possessed the fact “half-spoons” that he of hero- in. Even based on the evidence, Commonwealth’s a heavy might consume sixteen days. a matter of proof two or three further Without degree appellant’s use, possession of sixteen bags simply prove beyond does not doubt reasonable intended to deliver the It heroin. is at likely least as possessed drugs per- that he for his sonal use. I proof would hold that of a quantity of heroin which single could be consumed person in days, two to three more, without is insufficient an intent to deliver.
Therefore, would reverse conviction un- 780-113(a) der (30) § and remand for resentence on the conviction for 780-113(a) J., joins SPAETH, opinion. in this dissenting