Com. v. Hutchinson

947 A.2d 800

2008 PA Super 82

COMMONWEALTH of Pennsylvania, Appellant v. Robert Steven HUTCHINSON, Appellee.

No. 1146 MDA 2007.

Superior Court of Pennsylvania.

Argued March 18, 2008.

Filed April 25, 2008.

Jonathan H. Kurland, Asst. Dist. Atty., for Com., appellant.

Amy Jo Shaffer, Reading, for appellee.

BEFORE: STEVENS, LALLY-GREEN, and FITZGERALD^*, JJ.

OPINION BY STEVENS, J.:

¶ 1 The instant action is an appeal from an Order of Court entered in the Court of Common Pleas of Berks County on June 15, 2007, at which time the trial court granted the renewed Motion for Judgment of Acquittal of Appellee Robert Steven Hutchinson (hereinafter "Appellee") after his jury trial conviction. We vacate the order of the trial court and remand for reinstatement of the judgment of sentence.

¶ 2 Following a jury trial which commenced on July 14, 2004, Appellee was found guilty of Possession of a Controlled Substance (cocaine)¹ and Possession with the Intent to Deliver a Controlled Substance (cocaine) (PWID).² The Commonwealth (hereinafter "the Commonwealth") invoked the mandatory minimum sentence of two (2) years to four (4) years under 18 Pa.C.S.A. § 6317(a) relating to drug transactions that take place within a school zone and a mandatory minimum sentence due to the quantity of cocaine involved. Appellee was sentenced to two (2) years to four (4) years in prison.

¶ 3 Appellee appealed his judgment of sentence, and on April 26, 2005, this Court reversed the same and remanded the matter for a new trial upon finding the trial court erred in permitting Criminal Investigator Jose A. Colon to testify as a fact witness and as an expert witness at trial. Commonwealth v. Hutchinson, No. 1464 MDA 2004, 876 A.2d 464 (Pa.Super. filed April 26, 2005) (unpublished memorandum).

¶ 4 Following the presentation of all evidence during a new trial which commenced on June 14, 2007, Appellee moved for a judgment of acquittal which the trial court denied. N.T., 6/15/07, at 120.³ On June 15, 2007, the jury convicted Appellee of the two aforementioned crimes, and Appellee renewed his motion for judgment of acquittal. N.T., 6/15/07, at 123. The trial court inquired whether the Commonwealth intended to invoke the mandatory minimum sentence, after which the Commonwealth indicated it would be invoking "a school zone mandatory as well as a weight mandatory." N.T., 6/15/07, at 123. The trial court then granted Appellee's motion. N.T., 6/15/07, at 125.

¶ 5 On June 29, 2007, the Commonwealth filed a timely appeal to this court. On July 3, 2007, the trial court ordered the Commonwealth to file its Concise Statement of Matters Complained of on Appeal. The Commonwealth filed the same on July 17, 2007. On July 24, 2007, the trial court filed its Memorandum Opinion.

¶ 6 In its brief, the Commonwealth raises a single issue for our review:

Whether the trial court erred in granting [Appellee's] motion for judgment of acquittal after the jury found him guilty and where the evidence was sufficient to support the elements of the charges?

Brief for the Commonwealth at 4.

¶ 7 In support of its decision to grant Appellee's motion for Judgment of Acquittal, the trial court stated the following:

In the instant case, the Commonwealth's evidence suggesting that [Appellee] had constructive possession of the cocaine is speculative at best.

First, since Edwin Luberes claimed that he was the one in the pavilion on the night in question and he was dressed in a similar manner to [Appellee] there is arguably a question as to who [sic] police saw in the pavilion.

However, even assuming it was [Appellee] in the pavilion, it requires a leap of the imagination to find that he was actually aware of the cocaine's presence, let alone that he possessed the requisite power and intent to control it. While Reading Police Officers Wise and Mayer testified that they witnessed [Appellee] walk over to the pavilion, reach toward the rafter area, and then turn and walk back to the park bench, none of the officers present that night saw anything in [Appellee's] hand and no drugs were found on his person. [Appellee's] contact with the rafters was estimated to be a mere second.

"Where more than one person has equal access to where drugs are stored, presence alone in conjunction with such access will not prove conscious dominion over the contraband." Commonwealth v. Bricker, 882 A.2d 1008, 1016 (Pa.Super. 2005) (citation omitted). The drugs at issue here were found in a public park that was described by police as a high crime area where illegal drug transactions were common and where numerous people besides [Appellee] had access to the pavilion where the cocaine was found. Under these circumstances, [Appellee's] mere presence in the pavilion and proximity to the drugs is insufficient to establish [Appellee's] knowledge of the cocaine or his intent to control it.

While [Appellee] need not prove its case to a mathematical certainty, a conviction must be based on more than mere suspicion or conjecture. Commonwealth v. McFadden, 850 A.2d 1290, 1293 (Pa.Super.2004). Here, this [c]ourt concluded that the evidence was too weak and inconclusive for the Commonwealth to meet its burden by proving beyond a reasonable doubt that [Appellee] possessed the cocaine.

Trial Court Opinion, filed 8/3/07, at 4-5. As we shall discuss, infra, upon our review of the record, we disagree.

¶ 8 During the jury trial, the Commonwealth presented the testimony of Police Officer Michael Wise.⁴ Officer Wise testified that on August 1, 2003, at approximately 9:35, he was on duty and in the Two Hundred Block of Schuylkill Avenue in Reading at which time he observed two males sitting on a bench in Barbey's Playground, one of whom was counting money; the playground was closed at the time. N.T., 6/14/07, at 11-13. As Officer Wise and two other officers approached the men, Appellee got up and walked approximately twenty-five yards away to a pavilion where he reached up to the top of a pole which secured the roof. Id. at 16. Appellee returned to the bench, and the officers continued to approach. When he noticed the officers, Appellee ran north on Schuylkill Avenue, and a short foot pursuit ensued. Id. at 18. Officer Wise explained lighting from Schuylkill Avenue illuminated the pavilion which was located fifty feet from the sidewalk. Id. at 19-20. Officer Wise testified only the officers and the two males on the bench were in the park that evening. Id. at 22-23.

¶ 9 After Appellee was apprehended and taken into custody, Officer Wise returned to the same location in the pavilion where he had seen Appellee earlier. Officer Wise searched the area and recovered twenty-two packets of suspected crack cocaine encased in a plastic lunch bag. Id. at 19.

¶ 10 Criminal Investigator⁵ Jose A. Colon testified he accompanied Officer Wise on August 1, 2003, and as they and two other officers were driving in an unmarked minivan in the Two Hundred Block of Schuylkill Avenue, he observed two men sitting on a bench on the outskirts of Barbey's Playground one of whom was counting money. Id. at 29-31. Detective Colon, aware that past drug arrests had been made in the area, suspected drug activity may be occurring in the playground because the two men were in the playground after it had closed while one was counting money in plain view. Id. at 32-33. Detective Colon and his colleague, Detective Pat Leporace, decided some officers would be dropped off on the rear side of the park, while the remaining ones would wait on the other side of the street. Id. at 33. Each Officer was wearing his "vice uniform tackle shirt" which displays police badges on both shoulders as well as on the chest and the words "Reading Police" on the back in bright, yellow letters. Id. at 34-35. Detective Colon observed Appellee walking toward the pavilion and instructed the other officers to watch him, while he continued to observe the man who remained on the bench. Id. at 35-36. Appellee eventually returned to the bench, and feeling comfortable the officers had not been detected, Detective Colon initiated contact with the men, at which time Appellee started running north on Schuylkill Avenue while his companion remained seated at Officer Colon's direction. Id. at 38-39.

¶ 11 Detective Pasquale Leporace, a criminal investigator assigned to the vice division in Reading, testified that prior to August 1, 2003, he had been in the area of Barbey's Playground "many times" as "Barbey's Playground is a playground, unfortunately, where you can go buy drugs out in the open." Id. at 50-52. Wearing his ballistic vest with the word "police" displayed on it, Detective Leporace accompanied the others to the playground. He corroborated the testimony of Officer Wise and Detective Colon regarding the encounter and stated that Appellee ultimately ran into the hood of the blue minivan that he was driving, after which he placed Appellee in handcuffs. Id. at 54-57. Upon learning the other officers uncovered "items" in the rafters of the pavilion, Detective Leporace initiated a search of Appellee's person during which he uncovered $110.00 in cash from Appellee's pants pocket. Id. at 57-58.

¶ 12 Officer Christopher J. Mayer testified he observed Appellee leave the bench, walk over to a wooden pavilion, reach up into the rafter area, and return to the bench. No other civilians were in the park at the time. Id. at 66 (emphasis added). Officer Mayer joined in the chase of Appellee during which he heard Officer Wise shout, "stop, police." Id. at 67-68. After Appellee was apprehended, Officer Mayer accompanied Officer Wise to the pavilion where the latter stepped onto the picnic bench upon which Appellee had stood earlier, illuminated the area with his flashlight and pulled from a support beam a plastic sandwich bag containing twenty-one small, purple-colored packets and one small, yellow packet of suspected crack cocaine. Id. at 69-71. As Officer Mayer was taller than Officer Wise, he...