COMMONWEALTH оf Pennsylvania v. Jose Alberto RAMOS, Appellant.
Superior Court of Pennsylvania.
Filed March 12, 1990.
Reargument Denied May 22, 1990.
573 A.2d 1027
Argued Sept. 21, 1989.
Henry S. Kenderdine, Jr., Dist. Atty., Lancaster, for Com., appellee. (submitted)
Before TAMILIA, KELLY and CERCONE, JJ.
In this case we are called upon to decide whether a finding of possession with intent to distribute is necessarily precluded, when the amount of drugs found in a defendant‘s possession is fully consistent with possession for personal use. We find that the amount of drugs possessed is merely one factor in determining whether a charge of possession with intent to deliver can be sustained. We find the totality of the circumstances sufficient to sustain a finding of the rеquisite intent to deliver notwithstanding the relatively small amount of drugs involved. Consequently, we affirm the adjudication and disposition order for delinquency in this case.
I. The Drug Problem
Anyone with even a passing acquaintance with our criminal justice system or the popular media cannot help but be aware that America is engaged in a war on drugs, and that Pennsylvania is one of the battlegrounds. Though Philadelphia and Pittsburgh, like other urban centers across the country, have been hardest hit, there can be no question as to the accuracy of Attorney General Ernest Preate‘s grim observation that, there is “no community in Pennsylvania, no matter how tranquil, no matter how rural, that is immune from drugs. Every single county ... has a serious drug-problem.”1 The Crime Commission echoed that assessment in its most recent report:
“The drug problem is the number one organized crime problem in Pennsylvania.”
Pennsylvania Crime Commission-1989 Report, at 1 (1989).
Focusing more directly on drug trafficking, former Attorney General Leroy Zimmerman reported in 1988:
The Attorney General‘s Narcotics Strike Forces have, by statute, primary responsibility for combatting illegal drug trafficking throughout the Commonwealth.
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The strike forces have over the previous seven years arrested 10,687 suspects, almost all of them drug dealers. The number of arrests per yeаr has increased steadily, going from 1,223 in 1981 to 2,397 last year. And that has occurred even though the emphasis has been on producing quality cases, not quantity.
Strike force arrest records bear witness to the explosive growth of cocaine as the drug of choice in Pennsylvania: In 1984 there were 320 cocaine-dealer arrests; in 1987, there were 1,065 arrests involving powder-form cocaine and another 22 for new, cheap, potent and deadly “crack” form. That is a 300 percent increase in cocaine-dealer arrests in four yeаrs. The 1988 totals will be higher.
Zimmerman, Office of Attorney General-The First Eight Years, at 11 (November, 1988). The combined efforts of state and local law enforcement officers in Pennsylvania resulted in 6,640 arrests for cocaine or opium trafficking in 1987; 4,649 such arrests had been made in 1986. See 1987-Pa. Uniform Crime Report, supra, at A-10; 1986-PA Uniform Crime Report, at A-10 (1987); cf. Strategies for Improving Criminal and Juvenile Justice Within Pennsylvania, at 3 (PCCD 1989) (discussing drug arrest
The drug problem has had a рarticularly devastating impact on our juvenile population. In 1986, a national survey of high school seniors indicated 17% had tried cocaine and 13% had used cocaine in the past 12 months. In 1987, 15% indicated they had tried cocaine, 10.1% had used it in the past year, 4.3% had used it in the past month, 5.6% had tried crack, and 4.0% had used crack in the past year. In 1988, 12% indicated they had tried cocaine, 8% had used cocaine in the past year, 3.4% had used cocaine in the past month, 4.8% had tried crack, and 3.0% had used crack within the past year.2 A separate 1987 study rеvealed that 4% of eighth graders and 10% of tenth graders admitted having used cocaine.3 While these statistics indicate a positive trend away from adolescent cocaine use, the percentages are nonetheless staggering by themselves, and are generally conceded to underestimate actual teenage cocaine use because of the absence of high school dropouts from the surveys.4
In its 1989 Report, the Crime Commission reported:
Another dimension of the cocainе and crack market is the high number of youth who are attracted to the lure of “quick money.” Unlike other rackets, such as numbers gambling and loansharking, the number of teenagers and young adults who are active in the cocaine market is relatively high. This accounts for the reason there are relatively higher rates of violence in the cocaine/crack markets; youthfulness and violence are statistically related. Unlike more established and mature criminal markets, such as gambling, the cocaine market (as distinguished from the heroin market) is quite transient, and the youth involved represent a never-ending reserve labor force for criminal entrepreneurs and organizations. The Commission has found that it is not unusual for children in their teens to earn as much as $100 a day for participating in these distribution networks. Youth gangs and younger children are more involved in the cocaine market than was the case two years ago.
Pennsylvania Crime Commission: 1989 Report, supra, at 3 (emphasis added); see also Hopkins, “Crack: The Organization of the Market,” in Organized Crime Narcotics Enforcement Symposium, at 124-26 (Pa. Crime Commission 1988) (describing teenage “crew” drug trafficking operations involving lookouts, hawkers, runners, stashers, se-
Lookout is the entry level position for nine- and ten-year olds. They can make $100 a day warning dealers when police are in the area. Sometimes the pint-sized apprentice is rewarded with the most fashionable sneakers, bomber jacket, or bicycle. The next step up the ladder is runner, a job that can pay more than $300 a day. This is the youngster who transports the drugs to the dealers on the street from the make-shift factories where cocaine powder is cooked into rock-hard crack. Finally, an enterprising young man graduates to the status of the dealer, king of the street. In a hot market like New York City, an aggressive teenager dealer can make up to $3,000 a day.
Lamar, “Kids Who Sell Crack,” Time, at 20 (May 9, 1988); see also Wylie, “The Crack Epidemic,” Family Therapy Networker, at 14 (Jan/Feb. 1989) (Bill Hopkins, director of street research for the New York State Division of Drug Abuse, reported that 12- and 13-year olds commonly make $150 to $250 a day as lookouts, stashholders, and messengers); Gold, 800-Cocaine, at 85 (3rd Ed.1986) (quantity dealers organize small groups of street pushers, lookouts, and couriers, ..., who distribute the drugs on the street).
While money is an important inducement, it is not the only force behind the juvenile employment boom in drug trafficking. To the contrary, upper level dealers actively recruit juveniles because they are generally trustworthy, cheap lаbor, and easily disciplined. Moreover, unlike adults who face hard-time under stiff adult narcotics laws, the juvenile justice system‘s “slap on the wrist” response to juvenile participation in drug trafficking activities has lowered the likelihood of betrayal by juvenile employees making plea bargains, and has made the juveniles a uniquely recyclable criminal workforce. See Williams, The Cocaine
This case, involving a juvenile arrested for possession with intent to deliver cocaine and heroin in Lancaster County, illustrates both the reach of drugs into rural Pennsylvania, and the grip it holds on our youth population. It is against this backdrop that we conduct our review of the instant case.
II. Facts and Procedural History
The facts of this case have been set forth accurately in the opinion of the trial court as follows:
[O]n August 19, 1988, at approximately 10:20 o‘clock P.M., Captain James J. Benedict and Lieutenant Larry F. Wolpert of the Lancaster City Police Department responded in plain clothes in an unmarked vehicle to the scene of a shooting in the one hundred block of Green Street, Lancaster City. (N.T. at 5, 11, 12). After their duties in the area were completed, the two officers returned to the unmarked vehicle which was parked on Palm Street, approximately ten feet from the intersection of Green and Palm Streets. (N.T. at 8, 12).
As he was approaching the hood of the vehicle and from about ten to twelve feet away, Captain Benedict observed in plain view a young man kneeling on the pavement by the unmarked vehicle and reaching underneath the vehicle with an object in his hand. (N.T. at 5, 8, 9, 15). The Cаptain identified the young man as the juvenile, Jose Alberto Ramos. (N.T. at 5).
While Lieutenant Wolpert detained the juvenile, Captain Benedict reached under the police cruiser and with his flashlight, observed and found a small, black 35 millimeter film container with a gray lid. (N.T. at 5, 9, 12). Upon opening the cannister, the police found it to contain ten heat sealed plastic packets containing white powder. After testing the powder, nine plastic bags were found to contain a total of 1.33 grams of cocaine and the tenth bag contained .07 grams of heroin. (N.T. at 3, 6, 13, 19, 21, chemist‘s report). By stipulation of counsel, the chemist‘s report and its contents were admitted into evidence without the testimony of the chemist. (N.T. at 3, 4). Nothing else was found under the vehicle, not even debris. (N.T. at 6, 6, 9, 11).
The juvenile did not answer the officer‘s questions about the container, alleging that he did not understand English, although he testified in English at the adjudicatory hearing without the assistance of an interpreter. (N.T. at 5, 8, 12, 22-27).
The juvenile was transported to the Lancaster Police Station, where he was turned over to juvenile authorities.
(N.T. at 6, 13). The juvenile tоld the police, and testified at the adjudicatory hearing, that he had simply tossed a lighted match under the vehicle and then had stooped down to extinguish it. He denied any involvement with drugs. (N.T. at 19, 20, 22-24).
(Tr.Ct.Op. at 2-4). Appellant was adjudicated a delinquent child, placed on probation in the custody of his parents upon the express condition that he attend school, and ordered to perform seventy hours of community service. This timely appeal followed.
III. Sufficiency of the Evidence
On appeal, appellant contends that the evidence was insufficient to supрort the trial court‘s finding that appellant possessed heroin and cocaine with the intent to deliver. Specifically, appellant disputes the trial court‘s inference that the circumstances support the essential element of appellant‘s intent to deliver the controlled substances.
In reviewing the sufficiency of the evidence, the evidence must be viewed in the light most favorable to the Commonwealth, and the Commonwealth is entitled to all favorable inferences which may be drawn from the evidence. Commonwealth v. Pearsall, 368 Pa.Super. 327, 328, 534 A.2d 106, 108 (1987). We must then determine whether that evidence, viewed in the light most favorable to the Commonwealth, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Pagan, 315 Pa.Super. 7, 461 A.2d 321 (1983).
It is well settled that all the facts and circumstances surrounding possession are relevant in making a determination of whether contraband was рossessed with the intent to deliver. Commonwealth v. Fisher, 316 Pa.Super. 311, 322, 462 A.2d 1366, 1371 (1983); cf. Common-wealth v. Macolino, 503 Pa. 201, 205, 206, 469 A.2d 132, 134 (1983). Moreover, the Commonwealth may establish the essential elements of a crime by wholly circumstantial evidence. Commonwealth v. Brown, 336 Pa.Super. 628, 486 A.2d 441 (1984); Commonwealth v. Macolino, supra, 469 A.2d at 134-35.
It is true, as appellant asserts, that possession a small quantity of drugs, by itself, will not establish possession with intent to deliver, as opposed to possession for personal use. See Commonwealth v. Smagala, 383 Pa.Super. 466, 557 A.2d 347 (1989); Commonwealth v. Bagley, 296 Pa.Super. 43, 442 A.2d 287 (1987); Commonwealth v. Pagan, supra. This fact, however, does not compel acceptance of appellant‘s claim that the evidence in this case was therefore insufficient to establish possession with intent to deliver.
In Commonwealth v. Pagan, a small amount of marijuana was found during a lawful search of the defendant‘s home. 461 A.2d at 322. The panel in Pagan emphasized that the circumstances surrounding the possession, though suggestive of possible drug dealing, were not sufficient to raise a compelling inference that Pagan‘s possession of the marijuana was for sale rather than personal use. 461 A.2d at 323.
In Commonwealth v. Bagley, defendants being pursued by police threw a small package contаining eleven glassine bags of heroin, from their car. 442 A.2d at 288. Given the fact that possession of heroin for personal use is a serious crime, the mere fact that the defendants ditched their drugs upon seeing or fleeing from pursuing police did not provide a logical and compelling basis to conclude that their possession of the small amount of heroin involved had been for sale, rather than for personal use.
Finally, in Commonwealth v. Smagala, supra, a small amount of drugs, a large amount of cash, various items of drug paraphernalia and index cards with names and numerical vаlues were seized during a consensual search. The panel majority held that the evidence was insufficient to
Significantly, all three cases cited by appellant were decided based upon the conclusion that the totality of the circumstances, reviewing the peculiar facts in each case, were insufficient to raise a compelling inference of possession with intent to distribute, rather than possession for personal use. Neither Smagala, nor Bagley, nor Pagan, however, involved circumstances vaguely analogous to those in the instant case.
Here, plain clothes officers observed, in plain view at close range, a juvenile suspect (who was unaware of the immediate presence of the police), conceal a small film case, containing nine heat sealed pre-packaged street sale units of cocaine and one of heroin, in a hidden but readily accessible location under a parked car, at a street corner, after 10:20 P.M. on the night in question. While noting that this was not the strongest possession with intent to distribute case he had ever seen, the trial court found the еvidence sufficient to sustain an adjudication of delinquency on that charge. We agree.
The conduct observed by the officers was strongly suggestive of drug dealer rather than drug user behavior. Teenage drug dealers on the street keep minimum street inventories which they replenish as needed.6 They often
Significantly, any suggestion of possession of the drugs by appellant for personal use, rather than for sale or delivery, stands wholly unsupported in this record. Appellant disclaimed any possession of the drugs at all, gave a wholly implausible and incredible explanation of his conduct (that he had only leaned under the car to put out with his hand a lit match which he had dropped), and in no way suggested that he had ever used either cocaine or heroin personally.9
In summary, we conclude that while presence of a large amount of drugs, by itself, may negate any inferences and refute any claim of possession for personal use,10 the
IV. Disposition
This case is illustrative of another aspect of the drug problem-the manner in which it robs our youths of their future employment capacity in the legal economy. In our information oriented society, education is a critical key to legal employment opportunities. Unfortunately, a juvenile‘s education is often the first casualty when a juvenile gets involved with drugs. See Williams, The Cocaine Kids, supra, at 65-66, 74-79, 132. Indeed, it has been aptly observed that the “greatest common denominator” among all delinquents “is that they don‘t go to school.” Kramer, At A Tеnder Age, supra, at 97.
Appellant was no exception. The public defender indicated that since coming to Pennsylvania from Puerto Rico “a year and a few months” earlier he had attended school only “three months.” (N.T. 11/9/88 at 26).
Of course, there is no mercy in letting a juvenile have his own way in plunging headlong to destruction. Nor is there mercy in sending a juvenile offender back to everything that brought him before the court with nothing more than a stern lecture. We have learned by costly experience that
A firm but proportionate response is required. We note that this case illustrates one such response.
As a first offender, appellant was placed on probation. However, two noteworthy conditions were imposed. First, probation was expressly conditioned on school attendance. If enforced, this condition will extend to appellant a opportunity for self improvement and rehabilitation, while at the same time reducing the amount of time available to appellant to engage in destructive activities. Second, appellant was ordered to perform 70 hours of community service, thus imposing burdensome consequences on appellant for his misconduct, which at the same time will provide restitution to the community and an opportunity for appellant to form a positive attachment to the community. This, of course, assumes that the community service involves real service to the community for the full 70 hour requirement imposed.
In theory this is an idyllic response. Whether it will work in practice will depend initially upon whether appellant‘s parents and the probation authorities ensure strict enforcement of the conditions of probation. Ultimately, success or failure will depend on appellant. Neither he, nor this Commonwealth, can afford to waste this opportunity. If appellant violates probation or commits a subsequent offense as a juvenile or as an adult, the need for incapacitation to safeguard the community would rise while the hope of rehabilitation would dwindle; thus presenting an entirely different calculus should appellant stand before the
Order affirmed.
TAMILIA, J., files a concurring statement.
TAMILIA, Judge, concurring:
I concur in the result rather than join the majority Opinion as I believe the majority has indulged in a sociological dissertation and inclines toward justifying the result because of external reports of media and other sources rather than the facts or law of the case.
Notes
We note that legislatures have begun to address this problem by enacting stiff penalties for the use of juveniles in drug trafficking operations. In Pennsylvania, a mandatory minimum sentence of two years imprisonment applies if it is established at sentencing that a person convicted of possession with intent to deliver, delivered drugs to a juvenile with intent to enlist the juvenile in drug trafficking.