Com. v. Dellisanti

• Citation: 831 A.2d 1159
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Margaret DELLISANTI, Appellant COMMONWEALTH of Pennsylvania, Appellant. v. Margaret Dellisanti, Appellee
• Decision Date: 21 August 2003
• Court: Superior Court of Pennsylvania

831 A.2d 1159

COMMONWEALTH of Pennsylvania, Appellee, v. Margaret DELLISANTI, Appellant COMMONWEALTH of Pennsylvania, Appellant. v. Margaret Dellisanti, Appellee

Superior Court of Pennsylvania.

Argued November 7, 2002.

Filed August 21, 2003.

Michael J. Reed, Paoli, for Dellisanti.

James W. Staerk, Assistant District Attorney, Norristown, for Com.

Before: DEL SOLE, P.J., MCEWEN, P.J.E., HUDOCK, JOYCE, STEVENS, TODD, KLEIN, BENDER, and GRACI, JJ.

McEWEN, P.J.E.:

¶ 1 Appellant, Margaret Dellisanti¹ has taken this direct appeal from the judgment of sentence imposed after a jury found her guilty of two counts of corrupt organizations, four counts of delivery of drug paraphernalia, one count of possession with intent to deliver drug paraphernalia, and five counts of criminal conspiracy. We affirm in part, and vacate and remand for resentencing.

¶ 2 Appellant is the owner of a clothing store in Montgomery County, in which designer clothes and jewelry are displayed for sale to the public. On September 14, 1999, Detective Erik Echevarria of the Montgomery County Detectives Narcotics Enforcement Team (NET), working undercover, visited the appellant's store.

¶ 3 While in the store, Detective Echevarria requested inositol,² which was not an item of apparel and not an item displayed for sale. Following this request, Detective Echevarria was referred to "Tony" the store manager³ who removed a one half-ounce (1/2 oz.) bottle of inositol from underneath a podium in the store and handed it to Detective Echevarria. When the detective then requested small plastic baggies, Tony showed him a cardboard chart on which baggies of different sizes and colors were attached. Tony instructed Detective Echevarria to choose the size and color of the baggies he desired to purchase.⁴ After Detective Echevarria made his selection, Tony retrieved the baggies from beneath the counter and sold both the inositol and the baggies to Detective Echevarria. The inositol, the cardboard chart, and the baggies were not visible to store patrons, as they were kept in concealed areas of the shop. ¶ 4 On three subsequent occasions, September 28, 1999, October 4, 1999, and October 20, 1999, Detective Echevarria made additional purchases of inositol and baggies from the store, while sometimes referring to the inositol as "cut." With the exception of the September 28, 1999, purchase, which was made directly from appellant, the sales were made to Detective Echevarria by Tony. As part of each of the four transactions, appellant or Tony gave Detective Echevarria a sales receipt on which the inositol and baggies were listed as "miscellaneous items", while the other items purchased by the detective during the visit (such as a shirt and a key chain) were specifically identified on the receipts. Based on these purchases, on October 20, 1999, NET members executed a search warrant at the store and seized boxes of inositol, mannitol,⁵ and plastic baggies.

¶ 5 Appellant was charged on October 20, 1999, as a result the sales of drug paraphernalia made to Detective Echevarria, with one count of possession of drug paraphernalia with the intent to deliver, and four counts of delivery of drug paraphernalia, in violation of 35 P.S. § 780-113(a)(32) and (33), and of criminal conspiracy, in violation of 18 Pa.C.S. § 903. Although appellant initially agreed to work with investigators, as a result of a breakdown in the cooperation agreement, a second criminal complaint was filed against appellant charging her with two counts of corrupt organizations, 18 Pa.C.S. § 911, graded as felonies, and criminal conspiracy, 18 Pa.C.S. § 903. All charges were subsequently consolidated for trial and on October 12, 2000, appellant entered a plea of nolo contendre to four counts of delivery of drug paraphernalia, as ungraded misdemeanors, and one count of disorderly conduct.⁶ At the commencement of the sentencing hearing on March 15, 2001, appellant made an oral motion to withdraw her guilty plea which was granted by the trial court.

¶ 6 Trial commenced on April 19, 2001, and the jury found appellant guilty of two counts of corrupt organizations, four counts of delivery of drug paraphernalia, one count of possession with intent to deliver drug paraphernalia, and five counts of criminal conspiracy. Appellant was subsequently sentenced to four years of probation on the first corrupt organizations conviction and to a consecutive sentence of one year probation on the remaining corrupt organizations conviction, as well as to terms of one year probation on each of the drug paraphernalia offenses, all of which were to be served concurrently with each other and with the two sentences for corrupt organizations.

¶ 7 Appellant filed the instant appeal on July 5, 2001, and the Commonwealth filed a cross-appeal on July 19, 2001, pursuant to Pa.R.A.P. 903(b). In compliance with the trial court's directive, on July 20, 2001, appellant filed a concise statement of matters complained of pursuant to Pa.R.A.P. 1925(b), thereby preserving the following questions for consideration:

I. Did not the court err by denying motion for arrest of judgment for Corrupt Organizations where [appellant] was a sole owner of a retail store and there was no proof that funds supported the business nor were there any other ties to organized crime?

II. Did not the lower court err by denying arrest of judgment for Paraphernalia where there was no proof of

(a) specific intent that items be used with controlled substances or

(b) shared criminal intent with another who had such specific intent

and only proof was [the] sale of legitimate items where statute requires specific intent that items be used with drugs?

III. Did not the Court err by not instructing the jury in language of 18 Pa. C.S. § 302 regarding culpability that "mere knowledge" of what uses could be made of bags and inositol is not sufficient to convict where statute requires specific intent?

Brief for appellant, at 2.

¶ 8 The Commonwealth, in its cross appeal, requests that we determine "whether Commonwealth v. Lacey, 344 Pa.Super. 576, 496 A.2d 1256 (1985), misconstrues 35 P.S. § 780-113(a)(32) and (33) (relating to drug paraphernalia) by imposing a specific intent element, disregarding the plain language of the statute which defines the requisite mens rea as `knowing, or under circumstances where one reasonably should know' that an item is to be used with a controlled substance?" Brief of Commonwealth at page 4.⁷ We granted en banc review in this matter in order to resolve any confusion that may have been created by the panel opinions of this Court in Commonwealth v. Lacey, supra,

and Commonwealth v. Potter, 350 Pa.Super. 61, 504 A.2d 243 (1986) regarding the mens rea required for conviction under 35 P.S. § 780-113(a)(33).

I. Mens rea Requirement of 35 P.S. § 780-113(a)(33)

¶ 9 Appellant argues that the trial court erred when it denied her post-verdict motion for a new trial or for judgment of acquittal as to her conviction for violation of 35 P.S. § 780-113(a)(33) since the Commonwealth failed to produce any evidence of her specific intent that the items sold by her were to be used with controlled substances, or any evidence to establish that she had a shared criminal intent with another person who had the specific intent to use the items illegally. Appellant contends that in Commonwealth v. Lacey, supra,

this Court held that the Commonwealth is required to establish beyond a reasonable doubt that the defendant had the specific intent that the items at issue be used with controlled substances.

¶ 10 Appellant further argues that because an individual cannot lawfully be convicted of a crime based on the conduct of another without proof of a shared criminal intent, she cannot lawfully be convicted of the drug offenses based on the undisclosed criminal intent of the individuals who purchased the inositol. As part of this argument, appellant claims that she cannot be convicted of violating the statute even if she thought the items might be used with controlled substances because mere thought is insufficient to establish the specific intent required by Commonwealth v. Lacey, supra.

¶ 11 The eminent President Judge S. Gerald Corso rejected appellant's reading of Lacey, noting that this Court held in Commonwealth v. Potter, supra,

that the statute required only that the Commonwealth offer proof that the defendant had "knowledge of the likelihood that the items sold would be used in conjunction with controlled substances." Id. at 245. The trial court then concluded that the Commonwealth had introduced ample circumstantial evidence to permit the jury to find appellant had knowledge of the nature and intended use of the items and knowledge of the likelihood that the items she sold would be used with controlled substances.

¶ 12 While the language of Commonwealth v. Lacey, supra,

could be read to suggest that the Commonwealth must establish specific intent on the part of the defendant in order obtain a conviction under 35 P.S. § 780-113(a)(33), the trial court correctly ruled that Commonwealth v. Potter, supra, held that the mens rea requirement of the offense can be satisfied by circumstantial evidence of the defendant's knowledge of the likelihood that the items sold would be used in conjunction with controlled substances. Review of the express language of the statute reveals that specific intent is not an essential element of the offense. Rather, the Controlled Substance, Drug, Device and Cosmetic Act prohibits

[t]he delivery of, possession with intent to deliver, or manufacture with intent to deliver, drug paraphernalia, knowing, or under circumstances where one reasonably should know, that it would be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body a controlled substance in

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