*1 arguments by City raised Welding that the lower court in refusing erred its motions for judgment n.o.v. new trial.
Affirmed. A.2d Pennsylvania
COMMONWEALTH Gary SLYMAN, Appellant. Lee Superior of Pennsylvania. Court Oct.
Submitted 1981. Sept.
Filed 1984.
Reargument Denied Nov. 1984. Appeal Petition for Allowance of Denied March n *6 Ellis, Freedom,
Alan for appellant. Jr., Brown, John L. Assistant District Attorney, Philadel- Commonwealth, phia, for appellee. CERCONE,
Before Judge, President and SPAETH and HESTER, JJ.
CERCONE, President Judge: This is a direct appeal from the judgment of sentence 8, on imposed October N. Honorable John Sawyer, President Judge of the Court of of Common Pleas Beaver County. 21,
On 1979, December appellant was arrested and charged in six informations with sundry violations of Substance, Controlled Drug, (here- Device and Act Cosmetic inafter referred Act”).1 to as “the Following a jury, trial by 7, was May convicted on 1980 of six of counts possession with intent to cocaine;2 deliver and delivery of one possession count of with intent to deliver and delivery LSD;3 one count of conspiracy cocaine;4 to deliver one count possession cocaine;5 and one count of posses- sion marijuana.6 1. Act of 14, 1972, 233; P.L. 35 P.S. April §§ 780-101 to 780-144.
2. Id. 780-113(a)(30) 13, at Section as amended 35 § P.S.
3. Id.
4. The Pa.C.S.A. § 903. Crimes Code, Act of December 6, 1972, P.L. 1482 No. Section 1; Drug, 5. Substance, Controlled Device and Cosmetic Act of Act, April 780-113(a)(16) (1978). P.L. Section 13, amended, § 35 P.S. Id. of judgment motions arrest
Timely post-verdict written Appellant and for new were filed and denied. a trial alia, in a inter sentenced, imprisonment state undergo one and a correctional of not less than facility period (1%) (3) period nor This years. half more than three term then to a consecutive internment was be followed (3) addition, appellant was probation of three years. Three restitution in the sum of Thousand ordered make ($3,985), pay Eighty-Five Hundred and Dollars Nine ($5,000) together with fine of Five Thousand Dollars prosecution. his costs of *7 to the instant history
The and relevant procedural facts Kenst, Jr., paid Dale W. a informant are as follows: appeal Commonwealth, appellant met on October with for the business, of Larry’s Speed Shop, appellant’s place 1979 at drugs. sale of consummating an illicit of purpose Gahagan of the Agent of Charles A. Acting on behalf Justice, purchased ap- Kenst of Department Pennsylvania Later appellant. cocaine from gram one proximately additional one- sold to Kenst an day, appellant that same ($1,000). Dollars for One Thousand half ounce cocaine in the two transac- purchased the cocaine Kenst delivered Gahagan. Agent tions to
(cid:127) on December Shop to the Gahagan Speed returned alone from ounce of cocaine again purchased and one-half ($950). Dollars Fifty for Nine Hundred appellant 12, 1979, Gahagan appellant procured On December Eight a cost of One Thousand of cocaine at one ounce hun- ($1,875), as one Dollars as well Hundred Seventy-Five Hun- (100) price units of LSD for One dosage dred ($160). Sixty dred Dollars Shop appellant Speed met at the on
Agent Gahagan to an additional four order secure Dеcember on the agreed to furnish appellant cocaine which grams of Gahagan at the was day. Upon shop, his arrival previous drug four of the and was promised ounces shown two which, half of his order he remaining to wait for advised told, Speed Shop by to delivered to the was due be appellant’s supplier within minutes. At 2:20 approximately a p.m., vehicle driven an individual identi- subsequently confederate, Gordon, as appellant’s George pulled fied to a stop in front of the store. alighted Gordon from his auto- mobile and entered store where he met with appellant period. for a brief After departed Gordon from the premis- es, Gahagan informed appellant Agent that the additional two ounces cocaine had been just suppli- delivered his er and that he was now prepared to conclude the transac- Gahagan policeman tion. then identified himself as a attempted place appellant under arrest.
Upon learning Gahаgan’s true identity, fled the appellant clutching store a jacket tan-colored which he quickly dis- carded on the street. Other law enforcement officers who secretly observing proceedings were in the Speed Shop gave chase apprehended him short order. After appellant was taken into his custody, jacket was impounded and a cursory search conducted its pockets a inspection without warrant. This yielded plastic bag containing approximately seven grams cocaine.
Following on the heels of appellant’s arrest was the issuance of search warrant for his apartment. Acting pursuant warrant, to the law enforcement officials confis- cated small amounts of cocaine and marijuana as well as a *8 allegedly scale used in weighing drugs.
By pre-trial motion, a which subsequently was denied by court, the appellant trial counsel for suppress had moved to evidence the seizure of the controlled substances from appellant’s residenсe. Counsel did not endeavor to sup- press the Commonwealth’s use of the cocaine removed from jacket appellant’s after apprehension. addition, his In he did not oppose the consolidation in one trial of the fifteen separate criminal appellant offenses with which was charged. did, however, Counsel a seek continuance the days prior trial four to its scheduled commencement. The reason stated in support of request this was counsel’s obtain inability to a treatise entitled “Cocaine: Legal and Technical Defenses Cocaine Prosecutions.” con- Counsel preparation in his necessary
tended that the was book represented had given previously trial the fact that he never judge The defendant a case cocaine. trial involving a appellant directed grant refused to the continuance and to trial. proceed raises fifteen issues for taking appeal, appellant this in seriatim will address them fashion.
our resolution. We 1. that the evidence adduced Appellant first contends trial as a matter of law at was insufficient him of the various “cocaine offenses” prove guilty argument The of this is that charged. he was crux which a prove failed to reasonable beyond the Commonwealth of each of the crimes component doubt an essential viz., sold to an charged, that the substance which later trooper, undercover state and was confiscated residence, a “controlled appellant’s person from II term of the Act. substance” as that is defined Schedule Appellant maintains that under terms of Section statute, 104(2)(i)(4) qualify cocaine will con variety if is of cocaine which is only trolled substance it posits only He derived coca leaves. naturally since, as the proscribed L-cocaine is under this section established, clearly among it alone testimony elicited at trial eight produced or of cocaine extant is vаrieties isomers Consequent directly through extraction from coca leaves. testing procedures employed argues he that because ly, samples chemists on the cocaine Commonwealth’s incapable distinguishing from him were between seized occurring produ naturally synthetically L-cocaine and 780-102(b) any drug defines substance” as or substance 35 P.S. a "controlled § II, through Schedules I V of Act. Under Schedule P.S. included in 780-104(2), a controlled substance includes: § derivative, preparation salt, of coca compound, (4) any leaves Coca *9 derivative, is salt, preparation which leaves, compound thereof any or and substances, shall not in- any but equivalent these chemically with of or identical leaves, do not which extracts coca extracts of coca leaves or clude decocainized added). ecgonine (emphasis cocaine or contain D-cocaine, cible form cocaine known as the Common wealth failеd to meet its beyond burden a proving doubt that the question reasonable substance in in fact was a “controlled substance.” We are not persuaded by this argument. trial,
At appellant presented as his Dr. only witness Johnston, Gordon professor organic R. a chemistry at the Pennsylvania University. State Dr. Johnston that testified the term “cocaine” meaningful is in only generic sense in and that reality, there are eight distinct isomers of cocaine. Isomers compounds are two more share with one the another same molecular formula possess- while ing different arrangements structural and properties. Dr. Johnston averred only the isomer L-cocaine occurs in Thus, coca naturally appellant leaves. argues that since is only L-cocaine derived naturally leaves, from coca it alone substance, is a controlled and because to distinguish unable between L-cocaine the syn- producible thetically D-cocaine, form of cocaine known as the charges against filed proved beyond were not words, reasonable doubt. In other appellant contends that the tests conducted Commonwealth chemists analyzing the sold substance by appellant Agent Gaha- gan as “cocaine” failed allegedly non-prohib- winnow the ited the prohibited from isomeric forms of cocaine.
The expert witnesses, Commonwealth’s forensic two chemists, Scott Ermlick Christine Tomsey, described techniques utilized in testing drugs as aswell their identity views on the actual chem- substance. These ists concurred in the testimony from elicited Dr. Johnston concerning eight existence separate types cocaine. Ermlick agreed Scott Dr. Johnston that of these vari- isomers, leaves, ous only L-cocaine is found coca but addition, testified that D-cocaine is a synthetically produca- ble form cocaine. Both Ermlick and Tomsey testified under cross-examination that they four tests which performed on the substance did not it conclusively identify state, however, L-cocaine. They per- did *10 test, test, micro-crystal
formance of a color a sniff test test, and an they infra-red able to spectraphotometry were presence confirm the eight two of the isomeric only forms of cocaine These isomers known to exist. were synthetic identified as the organic D-cocaine and the L-co- only caine. The issue then L-cocaine is a becomes whether into controlled substance or D-cocaine also fits this whether category. that, contrary representations,
We find to appellant’s that the statute’s the terms of Section make clear prohibitory sweep sufficiently is wide so as to embrace susceptible synthetic varieties of cocaine which are those (i) 104(2) of the Controlled Paragraph derivation. Section Substance, Act furnishes this Drug, Device and Cosmetic II description of a Schedule controlled substance: pro- ... whether (i) Any following substances sub- directly indirectly by or extraction duced from independently or means vegetable origin, stances of synthesis, chemical of extraction combination added). synthesis: (Emphasis chemical and 780.104(2). 35 P.S. §
Thus, the framers of the readily it is that apparent citizens of Act, protecting aim of given the statute’s broad of certain deleterious effects this Commonwealth from the of cocaine drugs, prohibit intended all varieties harmful from leaves as well as including that derived coca directly as D-co laboratory) in the such produced synthetically that identified this caine, experts the Commonwealth’s agree parties appeal as both to the instant Insofar case. laboratory experts conclusively the Commonwealth’s being white powder identified the seized synthetic L-cocaine or the naturally-occurring either Act D-cocaine, pro holding of our view forms, synthetic its cocaine both natural scribes up more than sufficient evidence Commonwealth’s .was of the numerous cocaine appellant’s hold conviction fenses.
In measuring the sufficiency forming the evidence basis of a criminal conviction, inquire we must whether —ac cepting as true all the upon jury evidence which a could properly verdict, have its based together with all reasonable inferences therefrom —such evidence and inferences are sufficient in law to prove guilt beyond reasonable doubt. Commonwealth Waller, 33, 42, 498 Pa. 444 A.2d *11 (1982). As always, the evidence is to be regarded the light most to favorable Commonwealth, the the verdict winner. Commonwealth Plusquellic, Pa.Superior v. 303 1, 4, 47, Ct. 449 A.2d 49 (1982). this
Applying
standard of review to the facts of the
instant controversy, the evidence adduced
the
Common-
wealth at trial established
beyond
doubt that
reasonable
the white powder
question
is a Schedule II controlled
substance within the
of
meaning
104(2)of
Section
the Act.
ruling,
so
we
dismiss
necessarily
as untenable
the interpretation accorded to the
of
language
Section
104(2)by appellant, the
which
nub of
is that the Act renders
illegal only those vаrieties of cocaine which are derived
naturally from the
of
holding
leaves
the coca plant. Our
does not
upon
since,
rest
decisional precedent
to our knowl
edge,
proves
none exists
dispositive
which
of the matter at
Rather,
hand.
we turn for guidance to the mandates of Pennsylvania Statutory
Act,
Construction
1 Pa.C.S.A.
seq.,
1901 et
provides
which
phrases
that
§
“[w]ords
shall be construed
according
...
to their common and
approved usage.”
1903(a).
at
Id.
See also
v.
Wajert
State
Commission,
255,
Ethics
491
(1980);
Pa.
Crusco Insurance and Southeastern (1981); 437 A.2d Pa.Superior Ct. Weiner, Transрortation Authority v. Pennsylvania adoption Our Pa.Cmwlth. 104(2) necessarily would construction of Section appellant’s from the jettisoning paragraph concurrent of a entail the which, minds, proves dis- language to our operative Act’s we Consequently, reject issue at hand. positive construction of Act. appellant’s failed to next avers that Appellant to his conviction evidence sufficient sustain adduce delivery intent to deliver and LSD. possession with testing procedures Maintaining that Commonwealth’s unequivocally identify pink failing were defective Agent LSD, he Gahagan sold tablets We find no conviction should be vacated. asserts his *12 this and affirm the conviction. merit to claim must, evidence, light in the most as Viewing we below, winner to the as verdict favorable Commonwealth (1981); 224, 431 A.2d Young, Commonwealth v. 494 Pa. 337 A.2d Taylor, Pa. proved beyond the Commonwealth (1975),we conclude that question in were pink a doubt that the tablets reasonable LSD. expert, Commonwealth’s Scott direct examination the
On tеsts separate two Ermlick, performed testified that he had LSD, test and a chromatography a color suspected on the (TLC) explained test. He chromatography layer thin chromatography test follows: color and determine what try I the color test to Again, used test indi- contained, a That broad classification. was acid, common- lysergic this probably to me that cated Diethylamide. Lysergic Acid ly that, referred to as LSD. From proceeded I to use thin layer chromatography.
He then explained the TLC test:
Thin layer is chromatography system separation a compounds. you What have is glass plate a that has an compound it; absorbent on it gel. this case was silica An tablets, extract is made of the placed and it is dotted on the bottom of the plate. An extract of a known sample is made and also alongside dotted of it. These are placed into different small chambers that have various them, ratios of is, solvents happen what will once these plates plаced tank, are in the solvents, liquid bottom, at the migrate will up plate, and depending on weight and the polarity weight, of the unknown —the and the polarity solvents, these unknowns will settle out at different heights, and the plates are taken out, dried, examined under light ultraviolet and sprayed with a visualization spray, and by measuring them, you can a identify drug.
Finally, Mr. Ermlick his stated conclusion that the sub- stance tested was LSD.
On cross-examination Mr. Ermlick stated that the color chromatography test is a “presumptive test” that it only indicates the possible presence of a substance. He also stated that the TLC test is not a specific test for LSD. On re-direct examination Mr. Ermlick restated his direct testi- mony the effect that the TLC test comparing involves questioned substance, i.e., pills appellant had sold to the ie., undercover agent, substance, with a known LSD. Appellant’s expert, Johnston, Dr. Gordon R. testified that the TLC test only “give will good lead as to [the chemist] *13 what might view, In be.” his positive with [the substance] test, results of a an TLC infra-red analysis should be done. Dr. Johnston further stated that he per- while had never LSD, formed a test on TLC in his view in “three out of four times it may Then, not however, be correct.” he stated that when the test performed TLC is with a control it is sample, “rather accurate.”
430 1.) Mr. Ermlick stated that the facts that particular
Given
in
test and
sample
a control
of LSD the TLG
he had used
matched
suspected
being
the
LSD
found that
substance
2.)
Dr. John-
appellant’s
expert,
and
own
sample
the
test is
with a
ston,
performed
conceded that when the TLC
accurate,”
is “rather
sample, that test
evidence
control
challenged conviction.
support
sufficient to
is
he is entitled to
Additionally, appellant argues that
him in Informa
charges lodged against
of the
dismissal
(a)
for the reasons that
the District
1629
tion Number
(b)
and
sign
personally;
not
the information
Attorney did
signed
in fact
the information was
the individual who
in
Attorney’s
in the District
stead
to act
authorized
It is now settled
by the Judicial Code.10
prescribed
manner
sign
a criminal
Attorney
the failurе of the
District
225(b),
information,
re
of Pa.R.Crim.P.
violation
guarantee
authenticity
in order to
quires
signature
such
information,
the information
reliability
of the
renders
prompt
is
susceptible
since this defect
merely voidable
by
matter
raised
the defendant
cure
amendment if the
is
filed
to Pa.R.Crim.P.
pre-trial
quash
pursuant
motion to
Thomas,
306. Commonwealth v. Veneri and
Pa.Supe
as this defect is
rior Ct.
4. Appellant’s fourth allegation of error, namely, that the lower erred court in refusing to dismiss Informations Number 3212 and Number 3313 due to an alleged missing link in the of chain custody, is similarly incapable of resolu tion on appeal. of light the decision rendered by our Supreme in Court Commonwealth v. Gravely, Pa. 404 A.2d (1979), may we address those only issues which have propounded been with particularity post-ver dict motions. Inasmuch as this matter raised appellant in his motions in arrest of judgment and for a new trial, we regard it as waived.
Appellant maintains that the lower court in- erred in structing the jury as to the disputed case, issues in the particular the issues presented in the complex “isomer defense” theory which he advanced at trial. He directs our 255(b) signature intended the of that Pa.R.Crim.P. realistic to assume
attorney to act which be the exclusive deliberative for the validity integrity an charged of and that its absence annuls the defendant point prosecution process. gone on to a If case has otherwise untainted i.e., any meaning, has where the Commonwealth the information lost where charges by begun proof support trial or defendant stands at has convicted, meaning- stage only require signature would be not at that to even signature vanity. upset just To verdict for want of a but a less mere technical 788). (at slight totally unacceptable proportions, judicial of be hand would (1) charged 12. Information Number 32 delivery with one count cocaine, (1) possession and one count of of cocaine. charged appellant (1) 13. Information delivery Number 33 with one count of I.SD, possession and one count cocaine. articulate instructions admittedly attention jury charged Warren Judge Robert W. District Orzechowski,14 supra. See at States v. 547 F.2d United *15 compared asserts that when 982-83, Appellant 4. ns. & by the the Orzechowski given the instructions charge^ apprise sufficiently did not in the instant case court lower him of the cocaine acquit obligation of its the jury proved thе Commonwealth concluded that unless it offenses in question that the substance a reasonable doubt beyond alternative, or, was leaves, in the of coca a derivative was coca or identical to a derivative chemically equivalent Instruc- Moreover, Proposed since his urges he leaves. isomer his chemical 8,15 in he advanced No. tion judice, appellant appeal 14. As in the case sub maintained on Orzechowski prove beyond the Government failed to a reasonable doubt that the substance Drug agent which he sold to an undercover federal Enforcement constituted that of cocaine form II of the U.S.C. provides which is described as a "controlled substance” under Schedule Comprehensive Drug Abuse Prevention and Control Act of 1970. 21 812(b)(2). 11(a)(4), Act, § Schedule contained within Section 812 of the following language definition of a controlled substance in identical employed 780.104(2)(i)(4): to that in 35 Pa.C.S.A. § salt, derivative, leaves, any compound, prepаration Coca leaves and or of coca salt, derivative, any compound, preparation chemically and or which is thereof added). any (Emphasis equivalent or identical with substances these argued by government performed that the on the Orzechowski tests substance L-cocaine, naturally-occurring powder did that the chemists not establish was that, D-cocaine, powder proof was D- if the there insufficient that L- and chemically equivalent are identical. cocaine or Proposed Instruction No. 8 Defendant’s theory The defendant’s of this case is as follows: The Controlled Substances Act applies only leaves, to cocaine of the kind which is derived from coca or which is chemically equivalent sepa- or identical to such natural cocaine. Cocaine has 8 these, one, L-cocaine, only rate and distinct isomers. Of called is derived from chemically coca leaves. The equivalent other 7 cocaine isоmers are not or they physical prop- identical with L-cocaine because have different and chemical physiological prohibit erties and effects. The Controlled Substances Act does not product the distribution of those isomers of cocaine which are neither the natural equivalent product. of the coca leaf nor the chemical of such natural you support theory If the evidence have heard in of the defendant’s creates in your performed specific mind a reasonable doubt that the tests in this case are for chemically either a derivative equivalent of coca leaves or a substance which is substance, you identical to such a guilty. then must find the defendant not defense theory, embodied a concise statement of the issues be resolved the jury, the lower court erred in refusing his requested instruction.
It is clear that a trial judge may properly refuse to read points charge submitted by defense counsel which do not proper reflect a articulation of the law our Commonwealth v. Strong, Commonwealth. 484 Pa. Holland, (1979); Commonwealth v. Pa. A.2d 1026 Inasmuch as we have rejected in its entirety appellant’s theory that the Act only prohibits those isomers of cocaine which are the natural product of the coca leaf and their equivalents, chemical we hold that the trial court properly refused appellant’s pro posed instruction since it constituted an erroneous state ment of the law.16
6. Appellant also cites as error the failure of the lower court to advise the jury that it regard should height with ened scrutiny the of the testimony Commonwealth’s infor mant, Kenst, Dale Jr., W. purchased who cocaine from appellant on behalf of agent undercover Gahagan on Octo 26, ber 1979.17 Concurrently, appellant charges that trial counsel was ineffective in not requesting this so-called acknowledge positions 16. We today respect that the we take to the issues аnd, raised ultimately, the “cocaine isomer defense" the construction to be language 780.104(2)(i), accorded to the of 35 P.S. § are at odds with those adopted by which, interpreting certain federal similarly-phrased circuit courts statute, 812(b)(2), federal Schedule coca leaves. 21 U.S.C. § have ruled that cocaine will constitute a only long capable II controlled substance so as it is of derivation from e.g., 1048, (10th Posey, Cir.1981); See United States v. 647 F.2d 1053 Luschen, 1164, (8th Cir.1980). and United States v. 614 F.2d 2 1169 n. Since the Comprehensive Drug federal to have Abuse appears Prevention and Control Act of 1970 Pennsylvania’s served to some extent as a model for Controlled Sub stance, Drug, 1972, Device and may Cosmetic Act of these federal decisions offer guidance some Nevertheless, to Commonwealth courts in the construction of our own statute. way we are in no reject bound these cases and are free to their holdings, where, here, particularly position ambiguous. the federal remains 614, Casey, (1978), Danson v. A.2d 360 33 Pa.Cmwlth. 'd 484 Pa. 399 aff (1979); Abington Association, Educational 32 Pa.Cmwlth. A.2d (1977). Ortiz, (5th Cir.1980); See United States v. 610 F.2d 281 n. 1 Bockius, (5th and Cir.1977). United States v. 564 F.2d 1194 n. 1 transaction, charged As a result of this in Information Number cocaine, delivery 31 with two counts of possession and two counts of cocaine. to its exclu- and in not charge, objecting
“corrupt source”
held that a
We have
the court’s instructions.18
sion
point
a defendant’s
grant
refuse to
properly
may
trial court
informants
officers and
police
charge,
posits
case,
the court
of the
where
interest
in the outcome
have an
must consider
jury
that the
general
instruction
provides
or interest with which
potential
bias
its deliberations
testified. Vick-
may have
any witness
ers,
469,
You, jury, of the members facts to determine what order you nesses will believe true, passing upon of that as speak find and we you to be credit witnesses, determining what credibility that, determining you entitled to. In testimony their is knowledge of the the means of take into consideration testified, appearance their have they matters to which testifying, any the stand when upon their manner and in the outcome may have interest witnesses using these matters and case, considering all of deter- you will experience, good judgment own your therefore, and, what will believe you mine what witnesses facts find to be true. you adequately covered instruction general
Since this err in the court did not credibility, the matter of witness charge. “corrupt source” explicit a more providing attorney’s rep an adequacy measuring *17 to return to the client, are constrained of his we resentation Commonwealth in Supreme Court test our enunciated Maroney, 599, v. A.2d 349 Washington ex rel. 427 Pa. 235 ceases case, inquiry ruled that the Court (1967). by timely objecting preserve to issue for our review counsel did not this 18. Trial However, raising post-verdict we charge motions. the matter in court’s the do not сlaim of ineffectiveness of by appears regard before us in the context of since it now it as waived counsel, opportunity being asserted at the first and is appeal. purposes v. Sea- this Commonwealth for new counsel retained Hubbard, 621, (1978); christ, 259, 472 Pa. Commonwealth v. Pa. 478 (1977). A.2d 687 372
435
stewardship
is deemed constitutionally
counsel’s
effec-
particular
tive “once we
able to conclude that the
course
are
designed
chosen
had
by counsel
some reasonable
to
basis
604-05,
effectuate his client’s
Id.
7. We find no in appellant’s merit assertion that the charge lower court failed to jury, conjunction with its concerning possession instructions the crime of intent with substance, to deliver a on controlled included lesser offense of possession a controlled substance.20 The most inspection casual of testimony
8, 9 and 10. (3) arguments in his next three asserts Appellant points in of his refusing erred several that the lower court 4,No. unwilling to read Point The court was charge. for proving burden referred to the Commonwealth’s which doubt; Point No. a reasonable appellant guilty beyond accorded to the testi to be credibility discussed the which Commonwealth; and the employed by mony witnesses its jury’s duty to base emphasized No. Point by both presented on the evidence solеly decision the case charge adequately general The court’s at trial. parties the submitted legal principles by advanced embraced those points dismissed the correctly trial court and thus the points supra; v. Com Strong, superfluous. 429, 392 A.2d Johnston, Pa.Superior Ct. monwealth appellant’s argu carefully have reviewed We points his for refusing court erred ment that the trial witnesses, doubt, credibility on reasonable charge it and find to be jury, to considered evidence be without merit. to the challenge the additional poses
Appellant
duty
to the
its
to
convey
jury
that it failed to
charge
court’s
if
convinced
it was
conspiracy only
appellant
convict
conspiracy
object
that the
beyond a reasonable doubt
statute.
prohibited by
cocaine
of a form of
delivery
por
in its
Viewing
entirety
this assertion.
reject
We
elements
set forth the
of the court’s instructions which
tion
charge
conspiracy,
the crime
we believe
conspir
the fact that a
upon
jury
sufficiently impressed
a reasonable
proof beyond
rest on
acy conviction must
by George
delivered
Gordon
powder
doubt that the white
controlled
of resale was
fact a
purposes
the fact that the
grounded upon
decision is
substance. Our
criminal
of cocaine as the
delivery
court discussed the
conspiracy,
furthered
objective
have been
conspiracy
if all of the elements of the
emphasized that
doubt,
beyond
reasonable
proven
offense were not
*19
conspiracy
of the
acquit
had the
to
duty
jury
on
impose any greater
to
burden
see no need
charge. We
charge in this matter.
to its
respect
the trial court with
12.
his trial counsel
ineffec-
also that
was
Appellant alleges
six
infor-
separate
consolidation of the
opposing
in not
tive
that he
Appellant argues
he
tried.
mations on which was
in that it
by the consolidation
substantially prejudiced
disposition
infer a criminal
from
jury
encouraged
of offenses with whiсh he was
of the number
weight
sheer
evidence of the
of-
to cumulate the
various
charged, and
when,
tried
him
had each offense been
fenses to convict
acquitted.
he
have been
separately, might
of
consolidation or severance
Traditionally, the
informations has been viewed as
indictments or
separate
will
judge,
for the trial
whose decision
matter of discretion
of
of a manifest abuse
the absence
be reversed
to the defendant.
injustice
and clear
prejudice
discretion or
164,
(1981);
Morris, 493 Pa.
tion of
indictments
separate
Weighing
trial.
single
economy which results
consolidation, however,
that irrele
possibility
is
against
in its
will influence the jury
evidence
prejudicial
vant
Consequently,
offense.
particular
deliberations on each
held inadmissible
generally
crime is
evidence of a distinct
crime
being tried for another
аccused who is
against an
is not
of the
proof
of one crime
perpetration
since the
cocaine,
30,
possession
of
of
of
and one count
No.
one count
Information
cocaine;
31,
delivery
possession
two
of
No.
counts of
with intent to deliver
cocaine;
cocaine,
delivery
delivery
possession
No.
one count of
and two counts
cocaine;
cocaine,
LSD,
possession of
No.
one count of
one count of
of
of
cocaine,
cocaine;
delivery
possession
one count of
No.
and one count of
cocaine;
posses-
possession
No.
one count of
and one count of
cocaine,
cocaine,
possession
count of
and one
deliver
one
sion with intent to
count
marijuana.
possession of
Morris,
other.
v.
su
commission of the
Nevertheless,
general
this
admits of an
principle
pra.
crime
evidence of another
is
be
exception
cases where
motive; (2) intent;
(3)
(1)
prove
introduced in order to
scheme,
accident; (4)
plan
a common
of mistake or
absence
of two or more crimes
design embracing the commission
or
of one tends to
proof
are so related to each other
others;
(5)
identity
to establish
prove
of the crime on trial
charged
the commission
person
logical
there is such a
connec
circumstances where
under
of one will
proof
naturally
tion
the crimes that
between
person
accused is the
who committed
tend to show that the
Morris, supra;
Common
the other. Commonwealth
*20
Peterson, 453
Lasch,
v.
supra;
wealth v.
Commonwealth
(1973);
Fortune,
Commonweath v.
Pa.
We with Dale Kenst and completed he drug illicit transactions October 1979 and December Agent Gahagan between high one another such a correla 21, 1979 do not share with said to reflect a may fairly be they tion in details that as the Court defined operandi Supreme modus distinctive Nevertheless, appellant’s reject term in we Morris. consolida erroneously permitted trial court claim that the informations, ineffec and that trial counsel was tion of the consolidation. Our decision rests opposing in not the tive First, it is clear that the grounds. three upon independent informations offenses in each of the would evidence of the they trial of the others because separate in a be admissible of transactions relevant to a continuous series constitute and intent with which question of the criminal motive and sold the controlled substances. appellant possessed Second, charged to the crimes each the evidence as was, and there- uncomplicated and information was succinct so as to eliminate fore, jury capable separation prejudice no Finally, perceive we risk of confusion. any consolidation. His a result of the inuring appellant to in each infor- charges advanced defense to the only viable trial, presented in fact at was mation, identify to of the Commonwealth alleged inability fails Appellant drugs as controlled substances. confiscated strategies which were additional defense specify that none and we believe the consolidation forestalled in the case at severance granting exist. The actually re- judicial in a waste of resulted only bar would have infor- trial of the six different separate sources since each identity on the chemical focused mations would also have in question. the substances that trial counsel was ineffec argues next
Appellant the cocaine seized moving suppress tive offi by police retrieved itself was appellant’s jacket which attempt in his unsuccessful discarded it cers after rendered of our decisions light to elude аrrest. cases, that abandoned question is no but previous there employed by by police property may be obtained provided that evidentiary purposes, prosecution *21 illegal police action. by not induced abandonment was Williams, 544, 410 Commonwealth v. Pa.Superior Ct. Hall, v. Commonwealth (1979); 475 Pa. A.2d 835 Shoatz, v. Commonwealth 469 Pa. (1977); A.2d 1238 Jeffries, v. Commonwealth 454 Pa. (1976); Commonwealth stated in As we 311 A.2d Williams, supra: property-right in the strict is not issue abandonment [t]he discarded, left sense, voluntarily appellant but whether in the behind, relinquished prop- his interest or otherwise longer no retain a reasonable that he could erty so Id., to it. 369 Pa.Su- regard expectation privacy at 836 410 A.2d perior Ct. at [citations omitted]. no or coer case, there was unlawful In the instant relinquished he at the time Appellant, action. police cive cocaine, fleeing the containing jacket of the possession cause since the by probable fully supported from an arrest of a purchase the completed had arresting just officer Having abandoned from appellant. controlled substance pockets, its contained within and all substances jacket the expectation privacy with enjoyed an longer no appellant complain cannot now and thus to the articles respect at trial. Inso as evidence and introduced were seized they fully justified deny court would be suppression as a far in appel the cocaine discovered suppress to ing a motion regard to trial counsel are unable we jacket, lant’s pursuit file such a motion for his failure to ineffective for relief. a meritless claim prove would what ineffec trial counsel was also avers that Appellant of the Commonwealth’s of two in his cross-examination tive that counsel should he maintains Specifically, witnesses. payments of the subject the vigorously explored more have or other law Agent Gahagan by to Kenst promises made informant. police as a for his services officials enforcement reasons. contention for two reject this We appellant’s discloses that First, record our review of the cross-examina- Gahagan on from Kenst and elicited counsel charges pending drug-related had that Kenst tion fact trial, himself was a that Kenst the time of against him at testify against to paid Kenst was and that drugs, user asked Moreover, question to a responding appellant. that he was examination, Kenst stated on direct prosecutor made with agreement to an pursuant testifying charges disposition concerning short, all of virtually him. pending against then pursue his counsel failed asserts matters which excep- Gahagan, with Kenst and his questioning Kenst and the manner paid amount specific tion of the attention jury’s to the brought in fact were payment, *22 Second, prosecution. defense and we cannot conclude stewardship that trial counsel’s was ineffec- constitutionally forego tive as a of his an investigation result decision to into the specific surrounding payments details made to Although Kenst by the Commonwealth. this information would be relevant to the question whether Kenst’s testi- mony motive, was some grounded upon improper bias or we view counsel’s failure to discuss the matter strategy as a decision. Clearly, the presented by defense counsel at trial focused almost exclusively upon the chemical identity substances appellant. Having seized from raised previously the issue of credibility Kenst’s before the jury, counsel obviously believed there was no to proceed need further with a questioning line of which could not possibly have fortified appellant’s defense which could only serve to divert the jury’s perceived attention what counsel Thus, central issue of the employing hindsight case. record, evaluation of the we conclude that counsel’s conduct respect to his examination of Kenst Agent Dale Gahagan enjoyed some reasonable designed pro- basis mote aрpellant’s interests. Commonwealth ex rel. Wash- ington v. Maroney, supra. we Consequently, reject appel- lant’s claim that he denied right was his to the effective assistance of counsel.
Finally, appellant maintains trial court abused its in denying appellant’s discretion for con motion 1, 1980, tinuance May filed on four days prior to the scheduled date of pri the trial’s commencement. The mary reason support advanced in of the motion was coun sel’s obtain inability a treatise entitled Legal “Cocaine: and Technical Defenses in Cocaine Prosecutions.” Counsel maintained that the book was necessary preparation his for trial since he had never before acted as defense counsel in a case involving Well cocaine. entrenched is the principle “an appellate court not will find an abuse of discretion if the denial continuance did prejudice appellant.” Waters, Commonwealth v. 276 Pa.Superior Ct.
442 v. also Commonwealth See 419 A.2d (1981). Trial 146, Eackles, Pa.Superior Ct. pre- time in to four months nearly enjoyed counsel case law. upon applicable defense based appellant’s pare continue the agreed to Moreover, previously the trial court 21, 1980. The filed on March motion upon appellant’s case the refusing to continue its discretion did not abuse court counsel could trial merely time because case for a second addition, appellant is treatise. particular a not locate take a counsel failed to action specify to what unable the continu- requested denial of of the court’s consequence the case management counsel’s of trial ance. Our review way prejudiced in no appellant that leads us to conclude To from his defense arsenal. of the treatise by the absence examination of vigorous counsel’s regard we contrary, falling entire- chemists as and Commonwealth both defense our courts have come of what within bounds ly In- stewardship. constitutionally effective characterize as com- deed, Judge that Wisdom’s agree we “cocaine isomer ments, concerning presentation relevance enjoy particular in federal prosecution, defense” a controversy: to the instant Defense throwing about of brains.
There was much
the molecular structure
models of
counsel exhibited
expert
extracted from his
skillfully
cocaine isomers
knowledge
much or more
expert as
government
and the
could
United
jury
than a
absorb.
of the cocaine isomers
Bockius,
Judgments SPAETH, J., concurring opinion. files a SPAETH, concurring: Judge, Vickers, 260 The relies on Commonwealth v. majority (1978), that proposition for the Pa.Super. 394 A.2d assessing that in a witness’s general charge a to the effect credibility, jury should consider interest the witness any may case, adequate have in of a an аlways outcome is substitute for a more to the specific charge effect government may penal pecuniary informant have inter- ests testifying Maj. favorably op. Commonwealth. basis, at 433-434. On that concludes that majority request appellant’s specific trial the more counsel for charge would have Maj. op. been baseless. at 434-435. I am persuaded a request such would have been baseless.
First, I not from should derive proposi- Vickers broad tion that a is general charge always adequate an substitute for a a specific charge government that may informant penal have interests in pecuniary testifying favorably to the that general charge Commonwealth: we held a adequate in the presented circumstances Vickers does not mean it will adequate that be in all circum- conceivable addition, stances. if a specific charge even never were it would mandatory, request not follow that such a for a charge be such would basеless: a is at charge permis- least 359, sible. Commonwealth Carey, Pa.Super. v. 372- 439 A.2d 158-59 I nevertheless believe that here trial counsel have may had a reasonable for failing request specific basis a charge. ex rel. Washington v. Maroney, (1967). First, Pa. Charles A. Gaha- gan of the Pennsylvania Drug Bureau Control admitted on informant, Kenst, Jr., cross-examination that the Dale W. had paid Second, been his services N.T. past. 33. Kenst he acknowledged that had recently caught been police keg at party drug paraphernalia on his person, and he marijuana was a smoker and criminal charges relating drug to his use come yet down “ha[d]n’t he [; ---- know going what happen didn’t] [was] yet.” N.T. 24-26. finally, And Gahagan only corrobo- expanded rated but upon Kenst’s story considerable 22-24; detail. N.T. Appellant’s 35-37. trial counsel thus may well have concluded that the jury was already aware of Kenst’s penal pecuniary interests, and if that even it
wasn’t, nothing gained requesting charge be would interests, for such a charge those rеferring to specifically testimony. Gahagan’s undermine couldn’t that appel- conclusion majority’s I concur in therefore not ineffective. trial counsel lant’s A.2d 534 COMPANY, DUQUESNE LIGHT FABRICATORS, INC., Appellant. U.S. INDUSTRIAL Pennsylvania. Superior Court Aug. Argued 5, 1984. Filed Oct. notes discloses that the trial took judge guiding care in the jury considerable explicit concerning posses instructions the offense sion of a controlled That substance. counsel declined to argument advance this at in post-verdict trial or motions is frivolity. commendable view its We reiterate our position oft-stated that trial will not counsel be labelled as ineffective for his or her to pursue failure an untenable claim for Hubbard, relief. v. supra. Commonwealth 405, 414, Hernandez, 19. See also Commonwealth v. 498 Pa. 446 A.2d 1273 (1982); 539, 542, Boyd, Pa.Superior 300 Ct. A.2d (1982); Hook, 181, 185, Pa.Superior Commonwealth v. Ct. 446 A.2d appellant’s interpose timely objection Insofar as counsel failed to at trial motions, concerning question post-verdict this the matter did raise we assignment solely purpose resolving address the merits this of error for the the claim of ineffectiveness of counsel.