*1
Argued March 2010. Aug. Decided *3 Greenlee, Philadelphia, Association of Defender Ellen T. Philadel- Baker, Association of Rosalsky, Defender Karl Peter for Johnson. Philadelphia, Omar phia, Office, Jr., Burns, Attorney’s District Philadelphia Hugh J. Carr, Pennsylvania. Peter Commonwealth Philadelphia, EAKIN, BAER, CASTILLE, C.J., SAYLOR, BEFORE: MELVIN, McCAFFERY, TODD, JJ. ORIE OPINION Justice TODD. her- with intent deliver
This concerns appeal the trial court and, of whether question oin specifically, the purpose the total of heroin for weight calculated properly under 18 Pa. minimum sentence a imposing 7508(a)(7)(i) hold that the of the Crimes Code. We C.S.A. of one single purchase erred in finding trial court a third who retrieved person, of heroin from packets bundle automobile, with coupled Buick parked the bundle from that bundle to immediate resale of Omar Johnson’s *4 its conclu- officer, an basis for adequate an undercover formed of a second in constructive possession Appellant sion the Buick discov- heroin stored inside of packets bundle of Accordingly, search of it. during subsequent police ered from the Buick was amount of heroin seized because the the trial court in the calculation erroneously included possessed was found to have Appellant total amount of heroin deliver, improper imposi- in an thereby resulting with intent to years imprison- term of three minimum tion of 7508(a)(7)(i), ment under 18 Pa.C.S.A. we reverse and re- mand for resentencing.
The following relevant factual of this history case has been gleaned from the trial court’s opinion and the certified record. 16, 2004, On June narcotics Philadelphia officer Richard Gramlich was an conducting undercover drug investigation when he received information from a confidential informant that someone named selling “Omar” was a brand of heroin called “party,” Oxycontin Trial, well as tablets. N.T. 2/15/05, 23. The informant additionally provided Officer number, Gramlich with a telephone which the informant claimed belonged to and Omar could be used to arrange a purchase of these drugs. number,
When Officer Gramlich dialed the a person identi- fying himself as Omar answered. Officer Gramlich informed this individual that he wanted to purchase “a party bundle of Trial, and three oxy-40s.”1 2/15/05, N.T. at 9. Omar told Officer Gramlich to meet him at the intersection of Seventh and Girard streets in the City of Philadelphia. After Officer Gramlich had secured the officers, assistance of backup he proceeded there, to that location. Once Officer Gramlich had phone Omar, another met, conversation with they finally face, face to in the parking lot of a Laundromat located at 600 Girard Street. Id. at 9-10. The individual whom Officer Gramlich in person met was Appellant, Omar Johnson.
Officer Gramlich requested that Appellant enter his un- car, and, marked after Appellant complied, Officer Gramlich repeated prior his request heroin and Oxycontin. Id. at 10. At point, Appellant exited the vehicle spoke individual, another Stoner, later identified as Raheem and the two entered Stoner’s green car—a Chevrolet Lumina. Id. at time, 11. After a brief car, emerged Stoner’s car, re-entered Officer Gramlich’s and handed Officer Gram- lich a bundle of 11 packets stamped “party,” as well as two tablets which were Oxycontin. claimed Id. at 12. turn, In gave Officer Gramlich pre- $180.00 designation Oxycontin, "40” was a shorthand for the amount of 2/15/05, Trial, milligrams, sought. N.T. at 12. *5 numbers, after serial with buy money pre-recorded
recorded walking towards began the vehicle and left Appellant which however, scene; left the then car. Officer Gramlich Stoner’s all of the hand Appellant officers observed backup of his one to Id. Gramlich Stoner. he had received from Officer money the contents of one later “field tested” at 12. Gramlich Officer Appellant, from in the bundle he had obtained of the packets positive presence for he determined test and at 13. heroin. Id. later, 30, 2004, called Officer Gramlich weeks on June
Two they, again, transaction and drug to set another Appellant up When and Girard Streets. to meet Seventh arranged location, his entered Appellant arrived at this Officer Gramlich Gramlich, more, for a bundle of once asked vehicle and Officer tablets. Oxycontin 40 milligram heroin and three “party” he obtain the uncertainty that could expressed Appellant stated that day fact it was late in the but Oxycontin due to the would, nevertheless, Appellant make an effort to do so. he bar, time car, and returned short nearby left the entered a milligram Oxycontin was an 80 later with what he claimed tablet, pre- him paid which Gramlich $50.00 Officer the scene departed then “buy money.” Appellant recorded heroin. Officer Gram- requested his own vehicle obtain await his return. lich remained behind to he left once had Officer Appellant officers followed Other Appellant observed and these officers presence, Gramlich’s something who retrieved unidentified individual meet another After and it to Appellant. from a automobile2 handed parked returned to where Officer Gramlich exchange, Appellant this vehicle, took and re-entered Officer Gramlich’s parked, had his sock. “polo” from packets stamped out a bundle of Gramlich, he gave Appellant According $120.00 Officer time told him: “Next buy money, pre-recorded Id. at 15. I have to run around.” call with order so don’t your left, one of the field tested After Officer Gramlich bundle, it for heroin. positive tested packets record. vehicle is not of 2. The make and model of this 6, 2004, Finally, on Officer made contact with Gramlich and asked him for another phone bundle of heroin, as well as an 80 milligram Oxycontin tablet. Officer *6 Appellant Gramlich and once more met at the intersection of Street, Girard Avenue and whereupon Appellant got Seventh into Officer Gramlich’s vehicle. took out a Appellant bundle of packets 12 of heroin “check bearing stamp due.” Officer Gramlich asked if he could obtain another Appellant bundle. at In response, Id. 18. out of the vehicle Appellant stepped call, and made a which during Appel- Officer Gramlich heard lant say jaun,” he wanted “one which inter- Officer Gramlich to mean a preted request for one bundle of heroin. Id. conversation, vehicle, Appellant concluded re-entered the Street, and told Officer Gramlich to drive which up Seventh he did. Id. Streets,
At the intersection of Seventh Master Appel- and lant asked pull Officer Gramlich to over. Id. at 19. Appellant alighted from the vehicle and walked towards a gold Buick parked nearby. Another later person, identified as William Wilson, Buick, got out of the shook hands with Appellant, and with began talking According him. to Officer Gramlich conversation occurred on the corner of southwest Seventh and time, Master Id. After a brief Streets. Officer saw Gramlich Buick, Wilson return to the reach the glove compart- inside ment area and retrieve a bundle of 13 which bore the packets, “new stamp era.”3 Id. at 19-20. then Officer Gramlich observed Wilson walk back to him Appellant give these turn, packets.4 Appellant, walked over to Officer Gram- single packet 3. Officer Gramlich later field tested the contents of bundle, both the “check due” bundle and the "new era” and he produced indicating determined positive that each test result substance was heroin. aspect history 4. The recitation of this of the factual of this case con- Superior opinions comports tained in the trial court and Court with 3; 5/26/06, testimony, Opinion, Officer Gramlich’s see Trial Court Johnson, (Pa.Super.2007). Commonwealth v. A.2d How- ever, discussed, infra, Superior erroneously Court nevertheless opinion Appellant present later in stated its “was within and Johnson, drugs (empha- obtained the from the Buick.” A.2d at added). support sis The record does not this statement as no evidence in ex- Gramlich Officer gave packets lich’s car and Gram- buy money. Officer in pre-recorded change $120.00 give return to Wilson subsequently Appellant lich watched which money additional money, as well as him this shake the two men saw pocket. in his Officer Gramlich had re-entered Officer Gramlich’s hands, after which back to drove at 21. Officer Gramlich vehicle. Id. Laundromat, meeting, of their first which was the site scene, officers to off, backup and radioed him left the dropped custody, Appellant he was taken into arrest When Appellant. buy money, additional in prerecorded was found with $140.00 was the one used cash, cell one which phones, and two at 51. Appellant’s Id. communicate with Officer Gramlich. therein. Id. at contraband was found car was searched but no *7 A of July arrested on 6. search and Wilson also were Stoner 12 of handgun, packets a .45 caliber car revealed Stoner’s to be cocaine, was discovered crack and two tablets. Wilson buy money and pre-recorded in carrying person on his $80.00 he retrieved the previously to the Buick from which keys Appellant. era” for Officer Gram- packets bundle of 13 “new the Buick. obtained a warrant to search subsequently lich packets bundle of twelve search a second yielded This era,” chunky of a white packets “new as well as stamped Phila- substance, was later tested packet one of which to cocaine and determined be Laboratory Police Crime delphia 21-22, base. Id. at was the events of to respect
With violating information with one count of via criminal charged (intentional of a controlled sub- possession § 780-101 P.S. 780-113(a)(30) stance), (pro- § violating one count of P.S. manufacture, intent or with delivery, “the hibiting substance,” deliver, aby person or a controlled to manufacture Act), to do so under the Controlled Substances registered not to deliver (conspiracy 18 Pa.C.S.A. violating one count suggest the Buick presented ever entered was at trial any time. substance),5 and violating a controlled one count of 18 Pa. (unlawful § 7512 use of a communication facility). C.S.A. to a bench trial Appellant proceeded before former Philadel- phia Judge Common Pleas Court Leslie Fleisher. At this trial testified, Officer Gramlich as did the other officers who had participated the surveillance and apprehension Appellant. Additionally, the Commonwealth introduced into evidence lab- oratory reports prepared by the Police Crime Philadelphia Laboratory detailing the its analysis per- technicians had formed on the contents the bundles of and tablets packets seized police during the sales from Appellant Officer and, also, Gramlich taken from the vehicles of Stoner Wilson.6 An individual report prepared each of regarding purchased bundles or seized.
All of the packets the bundles consisted of parts, two glassine blue containing was, insert a white substance which turn, encased in a clear plastic packet.7 In analyzing contents of the packets from each of the respective seized bundles, the crime laboratory technicians selected a single bundle, packet from each chemically its analyzed weighed contents, and listed the results for the packet on the report. not, however, technicians did provide an estimated total weight the contents of the entire bundle of packets. Instead, on three of the five reports they projection included a weight that the net of the contents of the bundle of packets fell below one gram. evidence,
After all of considering the trial court acquit- ted Appellant charge of unlawful use of a communica- *8 tion facility, but found him of the guilty conspiracy, possession, possession with intent to deliver Because charges. Appel- lant previously had been of possession convicted the offense of objective” 5. The conspiracy information listed the "criminal of the delivery of a controlled substance and the "overt act" in furtherance of the to be of a controlled substance with intent to deliver. prepared laboratory reports testify 6. The technicians who did not Appellant's sentencing hearing. either trial or reports packaging 7. Each of the stated the of bundles appearance. materials inside were consistent in their 390 substance, and, to the due a controlled
with intent to deliver estab- had the Commonwealth the trial court concluded fact more with intent to deliver Appellant possessed that lished heroin, mandatory minimum imposed it of gram than one pos- upon incarceration years of three sentence to 18 Pa.C.S.A. pursuant with intent to deliver session 7508(a)(7)(i), forth set infra. 1925(a), the to Pa.R.A.P. pursuant opinion prepared In its application whether the of determining explained, trial court (cid:127) under this required minimum sentence was each weight the total statute, a calculation of it utilized heroin, by multiplying achieved which was seized bundle bundle, on the in each as listed of one weight packet measured the total number reports, by laboratory aforementioned crime 5/26/06, at 7. Opinion, in the bundle. Trial Court packets “sufficient to prove that this method was The trial court ruled [Appellant] of the evidence preponderance of heroin.” Id. gram in excess of one possessed estimated weights table following represents in this case heroin and seized purchased entire amount of extrapolation: this means of using 16, 2004 JUNE HEROIN “PARTY” x 54 TO OFFICER 11 PACKETS SOLD 594 MILLIGRAMS GRAMLICH_MILLIGRAMS x 30, milligrams packets 20 260 “polo” 2004 13 June milligrams to Officer heroin sold _Gramlich_ 6, milligrams x packets 12 28 336 July 2004 “check due” milligrams to Officer heroin sold _Gramlich_ x 6, milligrams 27 packets July 2004 “new era” milligrams heroin sold to Officer _Gramlich_ x 6, milligrams packets July 2004 “new era” milligrams heroin seized during search_ Buick sold to that the of heroin quantity The trial court noted and on June by Appellant June Officer Gramlich Trial Court grams.” 1.5 “approximately 2004 amounted to *9 5/26/06, Opinion, at 6. the amount of heroin recov- Including Buick, ered from the the trial further court found that the “total amount of heroin seized as a result Officer Gramlich’s was investigation approximately grams.” 1.9 Id. Because the trial court viewed the three transactions between Appellant and Officer Gramlich as “a course of continuing conduct that part was of the defendant’s overall in a participation narcotics id. at selling enterprise,” aggregated it the total extrapolat- ed of the weight heroin seized all Commonwealth on days three and imposed mandatory minimum sentence based on that amount. the trial
Additionally, court found that Appellant and Wilson “joint were in possession” constructive of the heroin inside of Buick, “(1) reasoning that: both Mr. [Appel- Wilson and actively were in an engaging ongoing lant] criminal conspiracy (2) heroin, to sell the narcotics found in the vehicle were identically marked and packaged as heroin that Officer (3) Gramlich had purchased, and Mr. Wilson had retrieved heroin from vehicle his before it to transferring [Appellant] to complete drug sale.” Id. at 6. The trial court further deemed constructive Appellant’s possession of the heroin in the Buick to be established because he “had the ability and intent to exercise control identically over the heroin packaged in the bundle Buick completing drug transactions.” Id. at Thus, 7. the trial court added the extrapolated weight of heroin sold to July Officer Gramlich on 2004—687 milligrams the extrapolated weight of the heroin seized —to from the pursuant Buick to the execution of the search milligrams warrant —432 arrive at a total weight “ap- —to 1.1 proximately grams,” and concluded that this particular heroin, alone, weight justify sufficient to the imposition minimum sentence for with intent to deliver. Trial Court at Opinion 6-7.8 trial, attorney 8. At for the Commonwealth claimed that the amount grams. of heroin recovered on 2004 amounted to 1.043 N.T. Trial, 2/15/05, Presently, repeatedly the Commonwealth refers weight police report grams. its brief to the of heroin listed in the —1.47 4, 8, 11, However, police See Commonwealth’s Brief at and 15. report sentencing was never entered into evidence at trial or at the four raising Court Superior to the
Appellant appealed
1)
conspira-
his
insufficient to sustain
the evidence was
claims:
*10
2)
extrapolated
conviction;
improperly
the Commonwealth
cy
one
only
by weighing
of heroin
of each bundle
weight
the
3)
bundle;
by
committed error
the trial court
of the
packet
transac-
involved in the
of the heroin
weights
the
combining
4)
6, 2004;
even
16,
30,
and
July
and
tions of June
June
6, 2004,
traffic
he did not
July
events of
considering only the
date since he did not
of heroin on that
or more
gram
one
drugs
the
recovered
constructively possess
and
jointly
Superior
Court
panel
A divided
inside the Buick.
opinion.
in a
Com-
published
convictions
Appellant’s
affirmed
Johnson,
The
(Pa.Super.2007).
To answer this question, panel addressed Appellant’s challenge to the trial court’s finding that he constructively possessed heroin found in the search of the Buick after his arrest. The panel cited our Court’s decision in Common- *11 Valette, 388, 384, 548, wealth v. 531 Pa. (1992), 613 A.2d which defined constructive ability “the to exer- cise a illegal conscious dominion over the substance: the power to control the contraband and the intent to exercise that control.” panel then set forth the following three factors to its support conclusion that had the appellant ability to control the heroin taken from the Buick the search during and the intent to exercise control over it:
First, Officer Gramlich arranged drug purchases on three different the days, last of which with worked Mr. Also, Wilson to effect the buy. [sic] second he was present within and obtained the from the drugs Buick which a bundle of heroin marked “new era” was later recovered and matched the bundle Appellant sold to Officer Gramlich. Finally, Appellant clearly had the to obtain ability drugs the vehicle, in the as he was present it and filled an order placed by quantity Officer Gramlich from the contained therein.
Johnson,
of 18 Pa.C.S.A. sentence. minimum tory following questions: allocatur to consider granted
We ) determining erred in Court Superior 1. Whether for deter- was appropriate method expert extrapolation where the a controlled substance mining weight the controlled sub- the amount of estimate of extrapolated required impose the weight exceeds minimally stance mandatory sentence? heroin, ) which sells packets who person
2. Whether the street parked an automobile on were retrieved from automobile and who sitting in the a third who was party sale, have may be deemed to money from the accepted of heroin stored packets additional constructively possessed after his a search conducted during automobile found arrest? Johnson, Pa.
Commonwealth (2009). whether the trial court only need consider presently
We constructively possessed that Appellant determined properly Buick, “new era” heroin seized from the second bundle of weight with the aggregated its could be weight such that “new era” heroin Officer purchased the “check due” and 6, 2004, meet the one gram in order to on Gramlich minimum term imposition threshold for 7508(a)(7)(i).10We find 18 Pa.C.S.A. of incarceration under of it necessitates to be and our resolution dispositive, this issue *12 for resen- sentence and a remand Appellant’s the vacation of tencing. that he construc- finding the trial court’s assails recov- bundle of “new era” heroin
tively the second possessed tripartite legal He that the accepts from the Buick. ered Since, validity infra, explained we do not address the as court utilized to arrive at its estimate of extrapolation method the trial 6, 2004, accepting weight we are of the heroin seized on the total merely purposes of discussion of this calculation for the trial court’s not, express opinion to whether present, an issue and do proper under the the trial court was extrapolation method utilized circumstances. doubt, requirements beyond for a finding, reasonable that a 1) constructively substance, i.e., defendant an possessed illegal the defendant’s ability to exercise a conscious dominion over 2) substance; the illegal the defendant’s power control the 3) substance; illegal and the defendant’s intent to exercise control, Valette, were set forth in our Court’s decision of were supra, properly and acknowledged by Superior However, Court in its below. opinion he contends evi- dence in this case satisfied none of these three requirements, and he cites two key aspects of that evidence as primary support this contention.
First, Appellant avers the trial evidence showed he was Buick, never actually inside of the nor did he ever make any effort to enter it. Appellant notes that when he arrived at the where place the Buick was parked, got Wilson out of the Buick and talked to him on the street corner. After their initial conversation, Wilson went back to the Buick and secured the after drugs, which he them transferred to Appellant who was This, still on the standing street corner. Appellant suggests, shows that Wilson special “made efforts to keep [AJppellant of, f[ro]m, outside and away his car and the drugs stored within it.” Brief Appellant’s at 35.
Second, Appellant argues evidence adduced at trial only established the following sequence events: After Offi- cer Gramlich unexpectedly asked if he buy could bundle, second Appellant “spontaneously contacted” Wilson by phone heroin; order to obtain the second bundle of Wilson removed the bundle from the Buick and delivered it to Appel- lant; Appellant delivered bundle to Officer Gramlich in cash; exchange for and returned to paid Wilson and him for the heroin. Id. at 35-36. Appellant cites the lack of any other trial evidence which would have established a rela- tionship between himself and Wilson. He points out this was more than “an nothing length drug arm[’]s transaction” be- Wilson, source, tween himself a drug he asserts simply because he obtained a quantity discrete drugs Wilson, this act automatically did not render him in construe-
396 pos- which Wilson remaining drugs any of
tive possession Buick. Id. at 36. in the sessed him out of efforts to keep that Wilson’s maintains Appellant of heroin the second bundle the Buick which away Buick, to enter the stored, that he never tried and the fact so, key as a or remote means to do such any physical nor had ability neither the device, that he had demonstrated unlocking located inside drugs particular to control those power nor the there is no evidence demonstrat- claims the Buick. drugs that there were other any knowledge had ing he ever of Buick, and, thus, of this lack because situated in the intent to control those any not have had knowledge, he could trial evidence that the drugs. Appellant argues undelivered ability “an exclusive only that Wilson had demonstrated Id. at 37. stored therein.” any drugs his ... car and control constructive finding possession that a of contends the notion of construc- “stretches under these circumstances Id. beyond breaking point.” tive its by arguing Appellant’s responds The Commonwealth it makes no differ- and that fundamentally misguided, claim is of the second bundle constructively possessed ence he whether Buick, for was liable heroin found in the because theory conspiratorial liability. that amount of heroin under it proffers at 24.11 The Commonwealth Brief Commonwealth’s criminally responsible is conspirator is well settled that a in further- are committed all acts of a “which co-conspirator probable the “natural and design,” ance the common alia, acts. Id. at 25 inter (quoting, of those consequences” 482, 490, 867, Roux, 350 A.2d 465 Pa. Commonwealth 570, (1976) Eiland, 450 Pa. and Commonwealth v. (1973)). the trial asserts A.2d Commonwealth by preponderance matter established evidence 7508(b) and, also, evidence, beyond as under Section required theory in the Although did not advance this the Commonwealth courts, may trial it that we affirm the proceedings in the lower contends 587, 611, basis, citing Flanagan, 578 Pa. any Commonwealth v. court on (2004) (recognizing principle "has the that our Court any appearing judgment order for reason ability affirm a valid or record”). doubt, a reasonable that Appellant conspired with Wilson to *14 heroin, distribute with Wilson’s role in the conspiracy to be supplier Id. The drugs. Commonwealth contends that “[njothing could have been a more natural probable of byproduct Wilson’s role as a drug-supplier than that he keep
would an extra stash of drugs [Appellant] case were to him the bring welcome news that business brisk was and he Thus, needed a Id. larger supply.” Commonwealth con- cludes Appellant automatically was liable for posses- Wilson’s sion of the second bundle of heroin as he was his co-conspira- Commonwealth, tor. According to the [Appellant] “[s]ince was liable for the bundle of heroin in car [second] Wilson’s under the doctrine conspiratorial liability, of there is no reason to consider whether he was drugs liable for those under a of theory possession.” constructive Id. at 26.
The Commonwealth further that argues Wilson had both an ability and intent to control the bundle of heroin in the Buick vehicle, since it was his just and he had a delivered different Hence, bundle of heroin to Appellant from it. the Common- wealth asserts because Wilson’s of the bundle of possession heroin in the Buick was attributable to as “a Appellant natural probable consequence conspiratorial of their relationship ... he constructively possessed that bundle.” Id. at 29. The Commonwealth therefore concludes that was fully liable for the bundle taken from the Buick under either the theory conspiratorial or liability possession constructive and, therefore, Appellant correctly sentenced the trial court for of all drugs seized on 2004. Court, In reply his brief filed with our Appellant disputes that the trial evidence demonstrated existence of a con- tinuing conspiracy criminal between himself and Wilson distribute heroin. To the maintains that contrary, Appellant this evidence showed that the extent only conspiracy between himself and Wilson was limited to the one bundle of heroin that he obtained from then Wilson and delivered to view, In Appellant’s Officer Gramlich. the record does not contain evidence to any suggest ongoing conspiracy wider or delivery between himself and Wilson to effectuate the of other lone transac- involved in their that beyond of heroin quantities Court, in its tion, nor, opinion, the Superior he did suggests, beyond that transac- conspiracy of a wider find the existence Brief at 9-10. Reply Appellant’s tion. See not involve that this case “does argues further for a liability substantive person’s issue of a general ... Id. at co-conspirator.” criminal offense committed Rather, interpreta- case involves avers that this 7508, which he contends does tion of the text of 18 Pa.C.S.A. quantities drugs sentencing purposes include for not conviction unless defendant object are the of a constructively possessed or actually manufactured them or has He notes that Pa.C.S.A. them with intent to deliver. *15 7508(a)(1) of when the defendant is convicted only § applies 13(a)(30) Substances, Drug, of the Controlled violating Section the Device, Act, prohibits that section and Cosmetic with manufacture, of heroin intent to delivery, possession or points it. out that Section manufacture or deliver 13(a)(30) however, not, conspiracy either a convic- include does liability. references our conspiratorial tion or Hoke, Pa. in Court’s decision Commonwealth (2009), length infra, support greater A.2d 664 discussed in we held maintains that Hoke position. Appellant for his statute, § 35 P.S. 780- mandatory sentencing that another 113(k), the crime of to manufacture apply conspiracy did not to terms, statute, its restricted methamphetamine, as to mandatory only of the minimum sentence imposition methamphetamine. Appellant prof- crime of manufacturing argument of fers that Hoke refutes Commonwealth’s in the instant matter. conspiratorial liability analysis by addressing We our Commonwealth’s begin in of contained the second claim that heroin quantity be to imputed heroin in the Buick could bundle of stored liability.12 theory joint conspiratorial under a reading opinion appear the trial court’s It from a careful would ongoing conspiracy between finding that there existed an its imposition independent an basis for the Appellant and Wilson was not Appellant’s conviction of minimum sentence for of the First, that, to the extent that the Commonwealth is arguing when a been of conspiracy defendant has convicted to commit 7508(a)(7)(i), one of any the offenses enumerated amount possession of heroin which is in of a co-conspirator may be automatically imputed to the defendant for the purposes sentence, imposing mandatory minimum because of conviction, itself, and of we are compelled reject such argument, as the terms of this statutory provision do not allow such imputation. 7508(a)(7)(i)
Section provides, as follows: (a) General Notwithstanding any other provisions of rule.— any this or other act to the contrary, the following provi- sions shall apply:
(7) A person violating who is convicted of section (30) (37) 13(a)(14), Substance, or of The Controlled Drug, Device and Act where Cosmetic the controlled containing substance shall, or mixture it is heroin conviction, upon be sentenced as set forth in para- this graph:
(i) when the
aggregate weight
or
compound
mixture
containing
heroin involved is at
1.0
least
gram but
than
grams
less
5.0
the sentence shall be a
mandatory minimum term
years
prison
of two
and a
Rather,
finding
with intent
deliver.
was one of three
*16
upon
facts relied
for its conclusion that
inwas
constructive
possession of the second bundle of heroin
in
found
the Buick after
Wilson,
completed
had
his transaction with
and he and
5/26/06,
vicinity.
Opinion,
Officer Gramlich left the
See Trial Court
at
6;
Likewise,
supra p.
Superior
adopt
theory
the
Court did not
a
of
joint conspiratorial liability
affirming
imposition
aas
basis for
the
of
mandatory
Consequently,
the
minimum sentence.
the Common-
regard
original
wealth's contentions in this
were not included in our
however,
grant
appeal;
suggests
of allowance of
as the Commonwealth
affirmance,
theory
this as an alternate
of
we will address whether the
supports
theory
factually
legally.
record
the Commonwealth's
both
and
See,
Besch,
1,
1,
e.g., Commonwealth v.
Pa.
n.
1
544
3
fine of
from the
proceeds
in and the
the assets utilized
exhaust
however,
sentencing
if at the time of
activity;
illegal
trafficking
drug
of another
has been convicted
defendant
in
years
minimum term of three
a
offense:
as is sufficient
$10,000
amount
larger
and
or such
prison
proceeds
utilized
and
to exhaust the assets
illegal activity;
7508(a)(7)(i)
supplied).13
(emphasis
§
18 Pa.C.S.A.
guided
this statute we are
language
of
interpreting
In
and effectuate
that we must ascertain
principle
polestar
it.
1
Assembly
enacting
See
intent of the General
1921(a).
Statutory
further guided
§
We are
Pa.C.S.A.
of
the words
a
Act’s command that “[w]hen
Construction
the letter of it is
ambiguity,
free from all
statute are clear and
its
pretext
pursuing
spirit.”
under the
disregarded
not to be
1921(b).
statute,
is a
its words
penal
§
As this
Pa.C.S.A.
construed,
in those words
any ambiguity
and
strictly
must be
1 Pa.C.S.A.
Appellant.
in favor of the
interpreted
must be
242,
Jarowecki,
249,
1928(b)(1);
604 Pa.
§
v.
Commonwealth
(2009).
955,
A.2d
indication of the General Assem
Generally, the best
in its
may
plain
a statute
be found
bly’s
enacting
intent
Commonwealth,
Transp., Bu
Dep’t
Martin v.
language.
438,
429, 438,
588 Pa.
905 A.2d
Licensing,
reau Driver
(2006).
statutory language according
We therefore construe
unless
words
usage,”
particular
“common and approved
to its
mean
“acquired
‘peculiar
appropriate
have
phrases
” Jarowecki,
249,
(quoting
Pa. at
401 (2006) 1903(a)). 1 § and Pa.C.S.A. In this regard, “it is add, statute, not for the courts to to a by interpretation, a which the requirement legislature did not see fit to include.” 52, 59-60, Commonwealth v. Rieck Investment 419 Pa. Corp., (1965). 277, 213 A.2d Consequently, a matter of “[a]s statutory interpretation, although one is admonished to listen attentively to what a statute one must says; also listen attentively to what it does not say.” Kmonk-Sullivan v. State Co., 514, 525, 955, Farm Mut. Auto. Ins. 567 Pa. 788 A.2d (2001) (internal omitted); quotations see also Commonwealth Booth, (2001) (“[A] 564 Pa. court not an may achieve of a acceptable penal construction statute by reading into the statute terms that broaden its scope.”).
Accordingly, applying these and principles, giving words 7508(a)(7)© § of 18 Pa.C.S.A. their plain ordinary mean- ing, a mandatory minimum sentence be may imposed on a defendant under this statutory provision if he she only or has (30) (37) been 13(a)(14), “convicted of violating section or Substance, The Controlled Device Drug, and Cosmetic Act” and the amount of heroin involved in the commission of those specifically enumerated offenses exceeds one and is less gram 13(a) than five grams. The subsections of Section of the Substance, Controlled Drug, Device and Act Cosmetic listed 7508(a)(7)© 18 Pa.C.S. specifically prohibit: (14) administration, dispensing, delivery, gift or pre- scription any controlled by any substance or practitioner assistant professional under the direction practitioner’s (i) done supervision good unless faith in the course of his (ii) professional practice; within the scope patient (iii) in relationship; accordance with treatment principles accepted by responsible of the medical segment profes- sion.
(30) act, manufacture, Except as authorized this by delivery, or with intent to manufacture or deliv- er, a controlled substance not under person registered act, or a practitioner registered not or licensed board, appropriate State or knowingly creating, delivering *18 deliver, controlled a counterfeit with intent to or possessing substance. than a
(37) registrant, other by any person, The possession dispensed prescrip- labeled as a thirty than doses of more any of anabolic packages than three trade tion or more 4(3)(vii). listed in section steroids (37). 780-113(a)(14), (30), in this list Nowhere § and 35 P.S. convic- applies upon minimum sentence crimes to which the of however, conspiracy. tion, legislature did the include that, of law under the principle
It an established is Commonwealth, commit a conspiracy to of our Crimes Code offense, itself which is and the substantive offense substantive crimes. entirely separate are two object the of the conspiracy, Miller, 24, 27-28, 887 469 Pa. 364 A.2d v. Commonwealth Rios, 271, 283, (1976); v. 546 Pa. see also Commonwealth (1996) (“A 1025, 1030 be convicted of both may defendant A.2d object conspira the the offense that was conspiracy and omits the crime of legislature when cy.”) Consequently, statute, sentencing minimum we mandatory from a conspiracy not to legislature a choice must view this as deliberate to a conviction conspiracy enhancement apply sentencing forth in that statute. offense or offenses set for the substantive of the distinction legislature cognizant It is presumed is substan conspiracy the inchoate crime of the law between offenses, and, thus, intends a legislature if the tive criminal to the crime mandatory sentencing apply minimum statute express intention will be reflected conspiracy, this 1921(b). § of the statute. Pa.C.S.A. language our Court’s decision Com- suggested, As has Hoke, 587, 591-92, Pa. 666-67 monwealth case, In that (2009), point. on this is instructive particularly whether an individual’s question our Court considered methamphetamine to manufacture conspiracy conviction mandatory a minimum sentence authorized the imposition 780-113(k), a trial court to requires which § 35 P.S. under manufac- convicted of “any person such a sentence on impose Hoke, ... methamphetamine.” ture of 599 Pa. 780-113(k)). at 666 (quoting A.2d 35 P.S. Inasmuch as 780-113(k) statute, we penal language Section is noted its be In strictly narrowly regard, must construed. we the plain language statutory observed of this re- provision quired imposition of a minimum sentence only when a defendant was convicted of the manufacture of certain substances, specified controlled which included methamphet- amine, but it did not mention the crime of We conspiracy. reasoned that manufacture a controlled sub- stance and the crime of manufacturing controlled substance crimes, and, are two entirely separate due to the fact the plain 780-113(k) language of Section *19 encompassed only crime of manufacture, manufacture but not to conspiracy this section was to the inapplicable defendant’s conspiracy conviction. Hoke, 591-92, 599 Pa. at A.2d addition,
In we specifically rejected the notion that legislature always intends for a minimum mandatory sentenc- statute ing apply crimes, to to both inchoate and substantive even if the inchoate crime is not specifically incorporated into the statute. recognized Our Court that the legislature has explicitly included conspiracy and other inchoate crimes in mandatory other minimum sentencing statutes such as 42 § Pa.C.S.A. a (requiring mandatory sentence for convic- violence,”
tions of second and subsequent “crimes of which the and, statute defines certain specified as substantive offenses also, “criminal criminal attempt, conspiracy or criminal solici- offenses), § tation” to commit such 42 Pa.C.S.A. 9712 (requir- a ing mandatory sentence for a crime of violence committed firearm),
with a § and 42 a (requiring Pa.C.S.A. manda- tory sentence for a crime of violence public committed on transportation). We deemed these inclusions to be a reflec- legislature’s tion of the awareness of the difference between crimes, inchoate and substantive well ability as its to make subject inchoate crimes to the same minimum sentences applicable underlying to crimes—if it so desired. Hoke, 599 Pa. at at 668-69. A.2d did not judice, in the case sub
Likewise, legislature of in the list conspiracy of the offense to include choose which 18 Pa.C.S.A. offenses criminal enumerated 7508(a)(7)(i) Because this is conviction. upon applies § construe, we will not strictly we must statute which penal unambiguous to its conspiracy the offense of it to add rewrite 18 Pa.C.S.A. Thus, terms of explicit provisions. 7508(a)(7)(i) impose court the trial § did not authorize second bundle of for the Appellant on mandatory sentence Appellant’s the result of Buick as heroin stored Wilson’s conspiracy. of criminal conviction conspirato- of theory next address Commonwealth’s We affirmance, as it insofar and alternate basis culpability, rial ongoing existed an that there on the assertion premised is which to sell heroin and Wilson between bundle of heroin Wilson object as its the second encompassed automobile, guilty, that in his such had stored with conspiracy, that participation virtue is of heroin —an offense which to deliver that bundle intent 7508(a)(7)(i). reject We also in 18 Pa.C.S.A. listed an there existed contention, finding as the trial court’s to sell and Wilson between ongoing conspiracy bundle of seizure of the second heroin at the time by the evidence of automobile is belied heroin from Wilson’s record. *20 of “The duration long recognized:
As our Court has case, particular the facts of the depends upon a conspiracy entered is, agreement upon scope it depends that 85, v. Evans, members.” Commonwealth 489 Pa. into its v. (1980) Commonwealth 1025, 92, (quoting 413 A.2d (1976)). Pass, 45, 167, The facts 468 Pa. above, trial, did not establish and recited adduced Ap between conspiracy criminal any continuing existence of heroin additional quantities and to sell pellant Wilson on single that involved in the transaction beyond transaction, called to make In that Wilson Appellant Wilson, bundle of heroin from single received arrangements, Gramlich, re- and then delivered it to Officer immediately record, however, turned to money Wilson. is devoid suggest any agreement evidence to between deliver quantities Wilson to of heroin other than that which subject Gramlich, exchange. was the of this lone Officer sole witness in this regard, prior subsequent observed no or transactions between Appellant and Wilson indicative of their participation in an criminal ongoing enterprise, nor did he offer which any testimony would establish that Wilson to agreed deliver the heroin in the Buick at a future or shared a criminal point possess intent to the second bundle of heroin secreted the Buick for of its future purposes delivery.
To the
contrary,
evidence furnished
Officer Gram-
lich’s testimony regarding his
during
observations
his investi-
gation suggests
that
was a “freelance” middleman
for,
with,
who worked
or
no one
person
particular, but
would, instead, obtain heroin for buyers from whatever source
was most convenient and available at
the time
buyer’s
Indeed,
request was made.
Wilson was the third separate
supplier from whom Appellant obtained
to fulfill
drugs
Officer
buy
Gramlich’s
For
requests.
taking the bundle of heroin
Wilson,
Gramlich,
it
delivering
to Officer
and then con-
veying
purchase
Wilson
money, Appellant
properly
convicted of the offense of conspiracy to deliver a controlled
substance, for which he was charged.
swpra
See
note 5
(recounting that criminal
charged Appellant
information
with
offense of
and listed
delivery
controlled
object
substance as the
of that
conspiracy); Commonwealth
(2004)
577 Pa.
Murphy,
406 with those by the defendant is abandoned
committed
Tate,
Pa.
v.
he
Commonwealth
conspired.”);
whom
(1979) (same).
no evidence of
There is
401 A.2d
an
finding
“ongoing”
trial court’s
of
to
support
record
to
additional
and Wilson
sell
between
conspiracy
heroin, and,
length infra, no evidence
greater
as discussed
bundle of
even knew
second
to
that
suggest
Therefore,
there exists
in the Buick.
was
heroin
stored
that the of-
for a conclusion
evidentiary support
insufficient
heroin,
for which
with intent to deliver
possession
fense of
to
imputed Appellant
could be
arguably culpable,
was
Wilson
liability.
conspiratorial
of
theory
under
are
the Commonwealth
cases cited
Superior
The
Court
(Pa.Su-
Holt,
By as discussed the evidence in the judice case sub did not prove any conspiracy between Appel lant and beyond Wilson which extended their lone transaction. Consequently, the second bundle of heroin in the Buick could therefore, not, under a theory of conspiratorial culpability, form the basis of Appellant’s possession with intent to deliver conviction. Accordingly, not, the trial court could on that basis, the weight consider of the second bundle in imposing minimum sentence under 18 Pa.C.S.A. 7508(a)(7)®.
We turn now to the question of whether the lower
properly
courts
determined
to be in constructive
possession of the bundle of
heroin
the Buick. As our Court
“[cjonstructive
has noted:
possession
fiction,
is a legal
pragmatic construct to deal with the realities of criminal law
Mudrick,
enforcement.”
305, 308,
Commonwealth v.
510 Pa.
1212,
(1986).
507 A.2d
1213
The existence of constructive
possession of a controlled substance is
demonstrated
“the
ability to exercise a conscious dominion over the illegal sub
stance:
the power to control the [illegal
and the
substance]
Valette,
intent to exercise that
388,
control.”
531 Pa. at
at
(quoting
Macolino,
201,
A.2d
Commonwealth v.
Pa.
(1983)).
132,
469 A.2d
An “intent
to maintain a
conscious dominion may be
from the totality
inferred
Macolino,
circumstances.”
The evidence adduced matter our tradi evaluated accordance with sentencing hearing, review, not be sufficiency support, does principles tional doubt, Appel the trial finding a reasonable court’s yond was in constructive with Wilson of bundle lant in the evidence Officer supplied of heroin Buick. This most light even when viewed in a favor testimony, Gramlich’s Commonwealth, including all reasonable inferences able to therefrom, that: Wilson to only Appellant phoned showed single bundle of heroin. When arrived request location, with Officer Gramlich Wilson’s exited Wilson, car and had a conversation with which Gramlich’s *23 on a corner. public engaging occurred street After conversation, Appellant returned to the while Wilson Buick remained on the street corner. did not standing Appellant Wilson to the Buick. While was accompany Appellant stand corner, Buick, on the street ing Wilson entered the retrieved area, glove the bundle heroin from the box and returned to on the Appellant standing where was street corner. After Gramlich, money he Appellant obtained Officer deliv money Wilson, that to money pocket ered and other his Later, again remaining outside of Buick. when Wilson arrested, he keys was was discovered with the to the Buick in pocket. his
Importantly,
proof presented
there was no
at trial
that
any
had
to the
Appellant
connection
Buick whatsoever as no
any
evidence of
interest
him in the Buick
ownership
was
introduced,
Buick,
and he was never observed in or near the
Likewise,
time
or
any
entry.15
before
after Wilson’s
there was
trial
brought
Appellant
no evidence
forward at
to show that
any ability
had
to
passenger compart-
enter into
Buick’s
Thus,
yond a reasonable
we will
doubt.
view all of the evidence
question
received
trial court in the instant matter on this
in the
light most favorable to the Commonwealth under that standard and
all
draw
reasonable inferences from that evidence which are favorable
Valette,
to the Commonwealth.
As we have determined the trial court erroneously conclud- ed that Appellant constructively possessed with intent deliver the second bundle of “new era” heroin recovered from warrant, pursuant Wilson’s Buick to a search and as we discern inadequate support record for the Commonwealth’s theory alternate that this imputed second bundle could be Appellant as the result of conspiratorial liability, we conclude that the trial court therefore included the second improperly bundle’s in its weight determination that was sub- *24 ject to the mandatory minimum sentence of incarceration 7508(a)(7)(i). required by § Consequently, Pa.C.S.A. as the weight of the heroin involved the two sales to Officer Gramlich on 2004 does not meet the one thresh- gram old for imposition of the minimum sentence mandatory 7508(a)(7)© under 18 Pa.C.S.A. for the offense of possession deliver, with intent to we vacate sentence and Appellant’s remand this resentencing.16 Superior matter for The Court’s vacated, affirming Appellant’s hereby order sentence is this case is Superior remanded to the Court to remand to the Again, disposition Appellant’s because of this we need not address court, since, challenge extrapolation to the method utilized the trial weight even under the trial court's final determination of the of heroin method, using subject obtained this would not be to the imposition sentence for his convictions. resentencing Philadelphia Pleas
Court of Common opinion. with this accord resentencing. Juris- remanded for reversed. Case
Order relinquished. diction SAYLOR, CASTILLE, BAER and Justices
Chief Justice join opinion. MELVIN ORIE in which Justice concurring opinion EAKIN files a Justice joins. MELVIN ORIE dissenting opinion. files a McCAFFERY
Justice EAKIN, concurring. Justice it applies insofar as majority’s holding I concur with the case, acknowledge write separately facts of this but allowance granted law. We conspiracy dissent’s statement of following question: to answer appeal heroin, which were person packets who sells [WJhether aby on the street parked an automobile retrieved from who in the automobile and sitting who was party third sale, to have may be deemed money from accepted of heroin stored packets additional constructively possessed conducted after his during found a search in the automobile arrest? Johnson, Pa. 842-43
Commonwealth (table). (2009) who sells yes person answer is simple —a constructively pack- additional may possess of heroin packets automobile. Howev- co-conspirator’s heroin stored in a ets of er, co-conspirator’s of a possession a defendant’s constructive case, with the agree I must be drugs proven; still majority that it was not.
Nonetheless, well-settled state- correctly recites dissent in a co-conspira- that heroin found concluding ments of law in as a attributable to the defendant may be tor’s 411-14, liability. Dissenting Op., conspiratorial result of (citations omitted). Here, the evidence at 1096-98 A.3d and Wilson to sell appellant between proves *25 However, is the evidence the officer. delivered to drugs
411 insufficient to establish the conspiracy extended to the addi- tional heroin stored in Wilson’s Buick for the set forth reasons 405-10, majority. Majority See at at Op., A.3d 1092-95. can be a conspirator
One with a in different supplier capaci- source, middleman, ties: as the supplier’s as a partner, as or However, as a customer. aas customer or middleman one has, does not constructively possess all that the supplier absent additional evidence establishing Ap- connection. store, pellant shopped Wilson’s but that does not mean he possessed all Wilson’s stock trade. I concur Accordingly, with the majority vacating the of the imposition 7508(a)(7)(i). minimum sentence under 18 Pa.C.S. joins
Justice ORIE MELVIN this opinion. McCAFFERY,
Justice dissenting. conclude, Because I would under basic conspiracy prin- law ciples, that the heroin attributable to Appellant includes not only amount that he sold to the undercover officer but also car, amount recovered from his I co-conspirator’s must respectfully dissent. principle of law is more firmly
“[N]o
established than that
when two or more persons
or
conspire
combine with one
act,
to commit an
another[ ]
unlawful
each
criminally
is
re-
for the
sponsible
acts of his associate or confederate commit-
ted
furtherance of the common design.”
v.
Commonwealth
Roux,
482,
(1976) (citation
867,
465 Pa.
871-72
omitted);
U.S.,
640, 646-48,
see also Pinkerton v.
U.S.
(1946)
S.Ct.
A.2d imposes law upon conspirator full for the responsibility probable natural and consequences acts committed his fellow or if conspirator conspirators pursuance such acts are done in of the common or design *26 Thomas, 410 v. Commonwealth conspiracy.”); of the purpose (1963) (“There no of question can be 160, 189A.2d Pa. committed for the act accomplice of the responsibility the legal in the is agreed upon while the crime by coconspirators his the natural liable for criminally for he is course of preparation, circum under such acts of his fellows consequences Commonwealth, feder stances.”). as well as the of this Courts principle courts, general invoked repeatedly al have one in the of possession narcotics that are illegal attribute the of the conspiracy. to all members conspirator Perez, (Pa.Super.2007), A.2d 703 In Commonwealth sell heroin appellant observed the officer police an undercover while one-half hour within approximately to three individuals At one one Arthur Maddox. in front of the home of standing home, sales, Mr. Maddox exited his the heroin during point heroin, money accepted more appellant packets handed the in front of parked then in a vehicle from the sat appellant, sale, the home, After third watching appellant. his heroin money more and the handed Mr. Maddox appellant 705-06, Maddox The and Mr. appellant Id. at 709. packets. post-arrest thereafter. A search shortly were both arrested heroin, marked yielded packets more of Mr. Maddox’s home Id. at appellant. those that had been sold identically to with intent to possession was convicted of appellant 706. The criminal To conspiracy. substance and deliver a controlled appel- attributable to the the total amount of heroin calculate together the trial court added sentencing lant for purposes, buys, the observed appellant during the amount sold Maddox, his from the home of Mr. and the amount recovered gram, was more than one Because this total co-conspirator. pursu- minimum sentence mandatory the trial court imposed Perez, at 706 & n. 5. supra ant 18 Pa.C.S. court’s of a challenged imposition the trial appellant The sentence, that the heroin found arguing minimum attributed to home should not have been co-conspirator’s in his relief, as follows: reasoning denied Superior him. The Court it did not proved conspiracy, Because the Commonwealth constructive appellant’s] possession have to prove [the found in drugs co-conspirator’s] [his home. As a result of in the conspiracy, drugs fully home were attribut- able to appellant] as well as his co-conspirator]. [the [to Id. at 709. Superior nearly Court reached a similar result ten Holt, (Pa.Su-
years earlier in Commonwealth v.
In cases similar to Perez and the federal courts have See, reasoned similarly. e.g., United v. Payne, States 591 F.3d (2d Cir.2010) (concluding that the defendant-appellant “was accountable for ‘all reasonably quantities’ foreseeable crack distributed of which a conspiracy he was mem- ber”) (citation omitted); Garcia, United States 655 F.2d (5th Cir.1981) that (concluding “since the in the participants Garcia, ... apparently possessed the as a drug, will co[-]conspirator, be considered to have had it also” and that a co-conspirator responsibility “assumed for the [cocaine] possession by his co[-]participants by joining conspiracy”).
I believe that these decisions from our Superior Court and the federal circuit courts are persuasive instructive and here. fact, In the circumstances of the instant case are similar very Perez, to those in swpra. summarizes,
As the majority Appellant co-conspira- and his tor, Wilson, William collaborated the sale of a bundle of heroin to an undercover officer on 2004. Specifically, bundle of heroin a second requested the officer after then call and phone made day, Appellant Appellant location, where a particular to drive to the officer directed Buick. Wilson, in a sitting gold who was met Mr. Appellant conversed; briefly and Mr. Wilson shook hands and Appellant heroin from the Appellant packets Mr. gave Wilson exchange the officer in Buick; to gave packets Appellant well as $120; Mr. Wilson the as gave $120 then Appellant again. hands the two men shook money; other and some thereafter, shortly were arrested and Wilson Buick revealed additional gold of the search post-arrest of heroin therein. packets Perez, supra, those of are similar to obviously
These facts of heroin front where the made three sales appellant more heroin from who retrieved co-conspirator, home of his above, As discussed appellant to the to sell. give home found in the co- held there that heroin Superior Court simply by the appellant home was attributable to conspirator’s legal principle I believe the same conspiracy. reason of the here, heroin found in Mr. with the result that the apply should a co-conspirator. Wilson’s car is attributable heroin that if the sum of the I would conclude Accordingly, co-conspirator’s the heroin found in his sold *28 trial court properly one then the gram, car was at least for with minimum sentence a imposed 7508(a)(7)(i). intent to heroin to 18 Pa.C.S. pursuant deliver majority the above acknowledging principles, While it concludes that the facts declines to them here because apply con- any the existence of adduced at trial “did not establish and Wilson to tinuing Appellant criminal between conspiracy that involved in the beyond of heroin quantities sell additional 6, 2004,” ie., purchase by July transaction on single J.), (Todd, Majority Op. Opinion undercover officer. added). majority “nothing finds (emphasis A.3d at 1092 conspiracy a conclusion that the support in the evidence to deliv- Appellant Wilson continued after between Appellant Id. at 26 A.3d ered that bundle to [the officer].” [heroin] view, that suggests In the the evidence majority’s at 1092-93. for, was a ‘freelance’ who “Appellant middleman worked or with, would, instead, no one in but person particular, obtain heroin for from whatever buyers source was most convenient and available at the time a buyer’s request was made.” Id. I am unable Respectfully, agree with the inter- majority’s of the pretation evidence and its narrowing scope of the criminal view, to a In conspiracy single drug my sale. majority has failed to acknowledge significance of evidence supporting conspiracy, broader and thus has not credited the trial court’s finding Appellant and Mr. Wilson “were actively in an engaging ongoing criminal conspiracy to sell 5/26/06, heroin.” Trial Court Opinion, filed at 6.
The evidence from which I believe one can infer a broader can be summarized as follows. The undercover officer had heroin purchased on three different days by calling his cell phone number and arranging pickup, which always, direction, was at Appellant’s on the corner of Seventh Street and Girard Avenue in Philadelphia. On 2004, the day purchase, of the last when the undercover officer heroin, asked Appellant yet for another bundle of immediately it; made a phone call to request he then re- car, entered the officer’s and directed him to drive a couple of blocks to where Mr. Wilson in waiting his car. parked After Appellant and Mr. Wilson spoke briefly on the street hands, corner and shook the latter returned to his car to aget bundle of heroin from the glove compartment. Mr. Wilson gave the heroin to Appellant, gave who turn it to the officer exchange pre-recorded buy money. Appellant $120 then gave buy money, as well as money additional from his 386-87, pocket, to Mr. Wilson. at Majority Opinion, 1081-82; Trial Opinion Court at 1-2. Thus, one can conclude that was in the business selling heroin on a particular street corner. One can also reasonably infer that Mr. working drug Wilson was his trade in the same neighborhood Appellant, because he was wait- car, ing in his with heroin when parked packets, Appellant and *29 the officer only arrived from a of blocks couple away right after Appellant made the call to obtain the heroin. phone request unexpected additional and made his the officer
When
Appellant
in
day
question,
heroin on the
for more
Appellant
and to
with Mr. Wilson
to make contact
immediately able
at
Tellingly,
officer.
sought by the
from him the heroin
obtain
Mr.
more
transaction,
Wilson
Appellant gave
the end of the
just
heroin packets
officer for the
by the
paid
than the $120
pocket
from his
money
took other
also
Appellant
purchased;
to Mr.
as well.
that
Wilson
gave
conclude,
circumstances, I
as does
cannot
From these
Mr.
the interaction between
majority,
single drug
transaction.
more than
nothing
Wilson was
been,
majority
character-
well have
as
may very
for
him,
who obtained heroin
a freelance middleman
izes
Wilson,
source
just Mr.
but from whatever
from not
buyers
at 405-
was convenient and available. See
Majority Opinion,
operandi
But this modus
certainly
is