Com. v. Ratsamy

885 A.2d 1005

COMMONWEALTH of Pennsylvania, Appellee, v. Robert RATSAMY, Appellant.

Superior Court of Pennsylvania.

Submitted August 22, 2005.

Filed October 18, 2005.

Thierry L. McEldowney, Philadelphia, for appellant.

Hugh J. Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellee.

BEFORE: MUSMANNO, BENDER and OLSZEWSKI, JJ.

OPINION BY BENDER, J.:

¶ 1 This is an appeal from a judgment of sentence imposed upon Appellant after he was convicted in a bench trial of possession of a controlled substance, possession with intent to deliver (PWID) a controlled substance, and one count each of carrying a firearm, (1) without a license, and (2) on a public street. Appellant contends that the conviction for PWID is not supported by sufficient evidence and also against the weight of the evidence. Appellant also contends that the court abused its discretion by providing an answer to a question that was being directed to the Commonwealth's expert and then subsequently admitting the witness as an expert. We reverse the conviction for PWID and remand for resentencing on the remaining convictions.

¶ 2 Appellant was arrested on April 9, 2003 and charged with conspiracy, drug possession charges and weapons charges. At approximately 10:30 p.m. on that day, Philadelphia Police Officers were conducting an undercover surveillance of the 6600 block of Woodland Avenue. The surveillance targeted suspected drug trafficking activity with a focus upon an individual named Lamont Taylor. While the surveillance was ongoing, Officer Martinez observed Appellant and another man, later identified as Rom Sang, approach Taylor and engage him in conversation. After conversing awhile, Appellant was observed lifting up his T-shirt and removing a handgun. Appellant gestured with the gun in Taylor's direction, after which some laughter broke out, then Appellant put the gun back in his waistband and he and Sang walked toward and then into a restaurant located at 6519 Woodland Avenue. Based upon the observation of a handgun, Officer Martinez radioed backup to apprehend Appellant. In response to the call, several officers converged upon Appellant and Sang inside the restaurant. When Officer Martinez arrived inside the restaurant, he observed the two men on the floor being held at gunpoint. One of the other officers, Officer McNorty, searched Appellant and recovered a black handgun loaded with five live rounds, a plastic bag containing a single chunk or "rock" of "crack" cocaine and $349 in currency. Sang was found to be in the possession of some currency and a plastic bag containing 199 plastic packets. Appellant was then arrested and taken into police custody.

¶ 3 Appellant proceeded to a non-jury trial on September 29, 2004. At the conclusion of the trial, Appellant was found guilty of the above-listed offenses. Appellant was acquitted of conspiracy and possession of drug paraphernalia. Appellant was sentenced on December 13, 2004, pursuant to the mandatory minimum provisions of 18 Pa.C.S. § 7508 to three to six years' imprisonment. Appellant subsequently filed the present, timely appeal.

¶ 4 Appellant first contends that the evidence was insufficient to sustain the conviction for PWID. We agree. Our standard of review when reviewing the sufficiency of the evidence has been recited as follows:

The standard we apply in reviewing the sufficiency of evidence is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the factfinder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for that of the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Lambert, 795 A.2d 1010, 1014-1015 (Pa.Super.2002) (internal citations and quotation marks omitted). With respect to sufficiency cases involving PWID, Commonwealth v. Jackson, 435 Pa.Super. 410, 645 A.2d 1366, 1368 (1994), is instructive:

The Commonwealth must prove both the possession of the controlled substance and the intent to deliver the controlled substance. It is well settled that all the facts and circumstances surrounding possession are relevant in making a determination of whether contraband was possessed with the intent to deliver. Commonwealth v. Ramos, 392 Pa.Super. 583, 592, 573 A.2d 1027, 1032 (1990); Commonwealth v. Fisher, 316 Pa.Super. 311, 322, 462 A.2d 1366, 1371 (1983); see also Commonwealth v. Macolino, 503 Pa. 201, 205-206, 469 A.2d 132, 134 (1983).

In Pennsylvania, the intent to deliver may be inferred from possession of a large quantity of controlled substances. Commonwealth v. Santiago, 462 Pa. 216, 223, 340 A.2d 440, 444 (1975); Commonwealth v. Smagala, 383 Pa.Super. 466, 476, 557 A.2d 347, 351 (1989); Commonwealth v. Pagan, 315 Pa.Super. 7, 8-9, 461 A.2d 321, 322 (1983); Commonwealth v. Bagley, 296 Pa.Super. 43, 46-47, 442 A.2d 287, 289 (1982). It follows that possession of a small amount of a controlled substance supports a conclusion that there is an absence of intent to deliver. Commonwealth v. Gill, 490 Pa. 1, 5, 415 A.2d 2, 4 (1980); Smagala, 383 Pa.Super. at 476,557 A.2d at 352; Pagan, 315 Pa.Super. at 11,461 A.2d at 323.

Notably, "[i]f, when considering only the quantity of a controlled substance, it is not clear whether the substance is being used for personal consumption or distribution, it then becomes necessary to analyze other factors." Id.

¶ 5 In the present case, the Commonwealth's "expert," Officer Andre Schafer, opined that Appellant possessed the drugs with the intent to deliver. Although we will address this expert opinion in greater detail later in this Opinion, when Officer Schafer's testimony is reviewed it is clear that that opinion rests essentially upon a speculative leap from the size of the piece of crack cocaine in Appellant's possession. This is so because other than the size of the "rock," there is really no evidence that Appellant possessed this piece of crack with the intent to deliver it to another. Appellant possessed no paraphernalia commonly found in the distribution of crack cocaine, Appellant was not seen distributing drugs to another nor was there any testimony from someone indicating that they had previously purchased drugs from Appellant.

¶ 6 Although Appellant's companion was in possession of packets which could possibly be used to package pieces of crack cocaine, it is notable that the court found Appellant not guilty of conspiracy, thereby indicating that the evidence was insufficient to establish that the two men were working in concert.¹ Also notable is the fact that in reaching his opinion Officer Schafer indicated that he did not consider Sang's possession of 199 plastic packets that the crack was possessed with intent to deliver. N.T. Trial, 9/29/04, at 18. As such, the Commonwealth's case essentially rests upon the fact that Appellant possessed a single rock of cocaine, albeit one larger than is commonly purchased. From this fact, the Commonwealth's expert opines that the cocaine must have been possessed with the intent to deliver.

¶ 7 The above demonstrates that the Commonwealth's expert opinion represents a leap that is not corroborated by other independent evidence. It is also a leap that does not appear to be totally justified by logic. The piece of crack cocaine seized from Appellant weighed 6.2 grams, or less than one-quarter ounce, and less than the size of two "eight-balls,"² a quantity of drugs that is not an uncommon purchase from drug sellers.³ As such, it is hardly inconceivable that one who could afford to do so would buy crack cocaine in the quantity found here. Moreover, the cost of the drugs in question was not really that substantial. The testimony at trial indicated that the rock Appellant possessed would likely have been acquired for $200 to $250. This is not a case where an individual was stopped and found to be in the possession of $50,000 worth of drugs and then tried to assert that the drugs were strictly for personal use.

¶ 8 To counter the idea that the quantity of drugs found in Appellant's possession was consistent with personal use, the Commonwealth's expert opined that frequently individuals purchasing a "rock" of that size would have the intent to break it into smaller pieces for resale. However, this opinion rests largely on the premise that the average, drug-addicted crack user rarely if ever possesses enough money to buy crack in a larger quantity. Because of a lack of funds, the average user Officer Schafer came across purchased only one bag at a time. N.T. Trial, 9/29/04, at 19. While Officer Schafer may have testified as to a common experience, his premise would not hold up if a person possessed enough money to make such a purchase. Notably, the Commonwealth did not provide any evidence that Appellant was without a source of income or otherwise lacked sufficient funds to make a $200-250 drug purchase. As indicated above, we are not dealing with a sum of drugs that costs tens of thousands of dollars or even thousands of dollars. The amount of drugs purchased would certainly be within the financial means of many a working man.

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