Com. v. Murphy

• Decision Date: 25 March 2002
• Citation: 795 A.2d 1025
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Ronald L. MURPHY, Appellant.
• Court: Pennsylvania Superior Court

795 A.2d 1025

COMMONWEALTH of Pennsylvania, Appellee, v. Ronald L. MURPHY, Appellant.

Superior Court of Pennsylvania.

Submitted September 24, 2001.

Filed March 25, 2002.

James B. Rader, York, for appellant.

Christian J. Dabb, Assistant District Attorney, York, for Com.

BEFORE DEL SOLE, P.J., JOHNSON, J., and CERCONE, P.J.E.

CERCONE, P.J.E.

¶ 1 Appellant, Ronald Murphy, appeals from the judgment of sentence imposed by the Trial Court after his conviction for delivery of a controlled substance (heroin) and conspiracy to deliver a controlled substance (heroin).¹ After review, we affirm.

¶ 2 The underlying facts of this case, which gave rise to Appellant's conviction, have been gleaned from the trial record in this matter. The record reveals that on August 30, 2000 Pennsylvania State Trooper Timothy Longenecker went to an area in the City of York for the purposes of making a controlled purchase of heroin. N.T. Trial, 3/9/2001, at 65. Trooper Longenecker had made previous drug purchases in this area in an undercover capacity. The trooper, who was dressed casually, parked his car on the street outside of an apartment located at the intersection of Queen and Liberty Streets, alighted, and approached Appellant who was sitting on steps outside of the apartment. The trooper asked Appellant if he knew where he could score some "dope" which, according to the trooper, was street parlance for heroin. Id. at 66. Appellant replied by asking the trooper if he was a "cop." The trooper replied no; whereupon, Appellant called out to another man, Jose Rivas, who was across the street at the time, and asked Rivas to come over. Id. at 66, 89.

¶ 3 Rivas came over to where Appellant and the trooper were standing. Id. at 66. Rivas asked the Appellant if the trooper was a cop, and Appellant said "no, he's cool." Id. Rivas then asked the trooper how much money he was willing to spend, and how many bags he wanted. The trooper indicated that he wanted two bags. Id. at 67. Rivas told the trooper to "wait here," and Rivas then walked away north on Queen Street. Id. at 67. Appellant and the trooper remained behind and had casual conversation. Id. at 68, 91.

¶ 4 Several minutes later Rivas returned and told the trooper to follow him. Id. at 67. The trooper and Rivas then walked east on Liberty Street about one-half block. Id. At that point Rivas dropped two (2) bags of heroin on the street and told the trooper to drop the money on the ground. Id. at 93. The trooper complied and dropped two previously marked twenty-dollar bills on to the ground. Id. at 67. The trooper then picked up the drugs and walked back to his car. Id. In the process of so doing he turned around and observed Rivas picking up the money. Id. at 68, 94.

¶ 5 As the trooper walked back to the car, Appellant asked the trooper if he could share a half bag of heroin with him. Id. at 68. The trooper said no, but Appellant was persistent in his request. Id. Eventually the trooper gave Appellant $5.00 out of his pocket. Id. After giving Appellant the money, the trooper got in his car and drove away. Id. Appellant and Rivas were subsequently arrested by other members of the York County Drug Task Force.

¶ 6 In the bills of information lodged against Appellant, he was charged as a principal with the offense of delivery of heroin as well as being charged with conspiring with Rivas to deliver heroin. Appellant proceeded to a jury trial. At the conclusion of the Commonwealth's case, Appellant moved for a judgment of acquittal on the basis that he was acting merely as an a agent for the buyer and not the seller, what he termed the "buyer's agent defense." The Trial Court denied the motion, and Appellant testified in his own defense. Prior to the commencement of jury deliberations Appellant requested a jury instruction on the "buyer's agent defense," which was denied by the Trial Court. The jury was, however, instructed on the theory of accomplice liability. The jury ultimately returned a verdict of guilty. After the completion of a presentence investigation, the Trial Court on May 2, 2001 imposed a sentence of twenty-three (23) to forty-six (46) months incarceration for the delivery of heroin charge and an identical twenty-three (23) to forty-six (46) month sentence for the conspiracy charge. The Trial Court ran both sentences consecutive to one another. The Trial Court also sentenced Appellant to an additional consecutive term of incarceration of eight (8) to sixteen (16) months in prison on an unrelated retail theft charge.² Appellant's aggregate sentence was therefore fifty-four (54) to one hundred eight (108) months imprisonment. From that judgment of sentence, Appellant filed a timely notice of appeal.

¶ 7 On appeal to our Court Appellant presents two (2) issues for our consideration:

1. WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO CONVICT THE APPELLANT BEYOND A REASONABLE DOUBT FOR THE OFFENSES OF DELIVERY OF HEROIN AND CRIMINAL CONSPIRACY TO DELIVER HEROIN WHERE THE APPELLANT WAS ACTING AS AN AGENT FOR THE BUYER?

2. WHETHER THE TRIAL COURT ERRED IN REFUSING TO CHARGE THE JURY WITH THE APPELLANT'S REQUESTED JURY INSTRUCTION ON THE "BUYER'S AGENT" DEFENSE"?

Appellant's Brief at 5. We will consider these claims in the order in which Appellant has presented them.

¶ 8 In his first issue, Appellant challenges the sufficiency of the evidence to support his convictions for delivery of heroin and conspiracy. Our standard of review in addressing these challenges is well-settled:

In evaluating a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt.

Commonwealth v. Montini, 712 A.2d 761, 767 (Pa.Super.1998); Commonwealth v. Swann, 431 Pa.Super. 125, 635 A.2d 1103, 1105 (1994), appeal denied, 538 Pa. 669, 649 A.2d 671 (1994). In making this determination, we must evaluate the entire trial record and consider all the evidence actually received. Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super.2001); Commonwealth v. Rodriquez, 449 Pa.Super. 319, 673 A.2d 962, 965 (1996). "[T]he facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant's innocence, but the question of any doubt is for the trier of fact unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances." Commonwealth v. Seibert, 424 Pa.Super. 242, 622 A.2d 361, 363 (1993), appeal denied, 537 Pa. 631, 642 A.2d 485 (1994) (citing Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468, 478 (1977) and Commonwealth v. Libonati, 346 Pa. 504, 31 A.2d 95, 97 (1943)). "This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt." Commonwealth v. Swerdlow, 431 Pa.Super. 453, 636 A.2d 1173, 1176 (1994) (citing Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101, 1105 (1988)).

¶ 9 We first consider whether the evidence was sufficient to sustain Appellant's conviction for delivery of a controlled substance under Section 780-113(a)(30) of "The Controlled Substance, Drug, Device and Cosmetic Act" (hereinafter the "Act"). This portion of the Act provides:

(30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.

35 P.S. § 780-113(a)(30). Delivery is further defined by the Act as follows:

"DELIVER" or "DELIVERY" means the actual, constructive, or attempted transfer from one person to another of a controlled substance, other drug, device or cosmetic whether or not there is an agency relationship.

35 P.S. § 780-102 (emphasis supplied). As our Court further noted in Commonwealth v. Cameron, 247 Pa.Super. 435, 372 A.2d 904, 907 (1977): "Transfer is not defined in the Act; however, taking the commonly accepted meaning of the word, as we must... it means `[t]o convey or remove from one ... person to another; pass or hand over from one to another.'" (citing Black's Law Dictionary, at 1669 (Rev. 4th ed.1968)) (internal citations omitted). See also Commonwealth v. Metzger, 247 Pa.Super. 226, 372 A.2d 20, 22 (1977)

(for a delivery to take place under the Act does not require that the transfer of the controlled substance be to a law enforcement officer, but simply that it be a transfer between two (2) people).

¶ 10 Applying these legal precepts to the facts of the case at bar, to sustain Appellant's conviction for delivery of the heroin, as a principal in the delivery, requires that the Commonwealth have demonstrated beyond a reasonable doubt that Appellant delivered the cocaine to the trooper or another person. In other words, the Commonwealth must have proven beyond a reasonable doubt that Appellant transferred the cocaine by actually removing it from the possession of Jose Rivas and passing it or handing it over to the trooper or another person, or, alternatively, constructively causing it to be removed from the possession of Jose Rivas and to be passed or handed over to the trooper or another person.

¶ 11 The evidence adduced at trial does not establish that Appellant participated in any way in the actual physical transfer of the cocaine from Mr. Rivas to the trooper or to anyone else. To the contrary, the evidence adduced at trial, as set forth above, established only that Appellant merely introduced the trooper to Mr. Rivas and vouched for the trooper to...