Com. v. Gonzalez, 97-P-2266

• Decision Date: 09 July 1999
• Docket Number: No. 97-P-2266,97-P-2266
• Citation: 47 Mass.App.Ct. 255,712 N.E.2d 108
• Parties: COMMONWEALTH v. Pedro J. GONZALEZ.
• Court: Appeals Court of Massachusetts

Page 108

712 N.E.2d 108

47 Mass.App.Ct. 255

COMMONWEALTH v. Pedro J. GONZALEZ.

No. 97-P-2266.

Appeals Court of Massachusetts Plymouth.

Argued Dec. 18, 1998.

Decided July 9, 1999.

Stella Robinson, Lexington, for the defendant.

Michael E. Kiernan, Assistant District Attorney, for the Commonwealth.

Present: KASS, DREBEN, & SPINA, JJ.

KASS, J.

Once again, we consider the seller or buyer question in connection with a drug transaction. We decide that in this case there was sufficient evidence from which the jury could find that Pedro J. Gonzalez, the defendant, was a seller of heroin.

On December 19, 1996, a Superior Court jury returned a verdict of guilty against Gonzalez of possession of heroin with intent to distribute (G.L. c. 94C, § 32[a ] ). That day he was also convicted, at a second trial before the same judge and jury, of having committed that offense at least once before (G.L. c. 94C, § 32[b ] ) and was sentenced to serve a single, enhanced sentence of five years in M.C.I., Cedar Junction. ¹ As to the conviction of possession with intent to distribute, the defendant's primary claim of error concerns the judge's denial of his motion for a required finding of not guilty. Concerning the proceeding on the sentence enhancement pursuant to G.L. c. 94C, § 32(b ), the defendant claims multiple errors. We affirm.

1. Facts. Viewed in the light most favorable to the prosecution, see Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979), the jury could have found the following facts. On the afternoon of January 28, 1996, at approximately 2:40 P.M., Officer Michael Sullivan, who was sitting in a police cruiser, first observed the defendant standing with Angel Caraballo on a corner in downtown Brockton. That area is well known to police officers as a high crime area. An hour later, at 3:40 P.M., Officer Sullivan noticed that the two men had lingered on the same corner. He parked his cruiser about sixty feet away and watched. He saw one of the pair gesture a car over, with a motion of the head rather than a hand, to where the two were standing. The defendant stood nearby as Caraballo stuck his head in the driver's side window, reached in with his hand, and pulled something out of the car. Caraballo then put something in the defendant's left hand. With his right hand, the defendant reached into his right pants pocket and began to pull something out. As this was happening, Caraballo spotted Sullivan's cruiser and yelled something. The defendant quickly took the item that had been placed in his left hand and put it back in the car.

Sullivan moved to get assistance from a nearby officer. As he drove by the suspects, he pretended not to see them. He soon returned with another officer. Upon seeing the officers, the defendant began to run, but he was corralled by Sullivan. As he was being pursued, the defendant took something from his right pants pocket and attempted, unsuccessfully, to put it in his mouth. The item was later determined to be heroin, packaged in ten glassine bags, held together by a rubber band, with each packet bearing a brand-name stamp, "Eagle."

At the close of the Commonwealth's case, and again at the close of all the evidence, the defendant moved for a required finding of not guilty, see Mass.R.Crim.P. 25, as amended, 420 Mass. 1502 (1995), arguing that the Commonwealth failed to prove the requisite intent to distribute heroin. The judge denied the motion each time.

2. Motion for a required finding of not guilty. We consider whether the evidence, seen in the light most favorable to the Commonwealth, was sufficient to satisfy a rational trier of fact beyond a reasonable doubt that the defendant intended to distribute drugs. Commonwealth v. Latimore, 378 Mass. at 677-678, 393 N.E.2d 370. Commonwealth v. Navarro, 39 Mass.App.Ct. 161, 167, 654 N.E.2d 71 (1995). The Commonwealth's case relied heavily on inferences, which is of course permissible. See Commonwealth v. LaPerle, 19 Mass.App.Ct. 424, 427, 475 N.E.2d 81 (1985) (intent is a factual matter which may be proved by circumstantial evidence). To survive a motion for a required finding, it is not essential that the inferences drawn are necessary inferences. It is enough that from the evidence presented a jury could, within reason and without speculation, draw them. See Commonwealth v. Navarro, supra at 168, 654 N.E.2d 71. Nevertheless, a conviction cannot rest on conjecture or speculation. See Commonwealth v. Armand, 411 Mass. 167, 170, 580 N.E.2d 1019 (1991); Commonwealth v. Reid, 29 Mass.App.Ct. 537, 539, 562 N.E.2d 1362 (1990).

The essential elements of the crime of possession with intent to distribute are (1) the knowing or intentional possession of a class A substance (including heroin) and (2) the intent to distribute or dispense that substance. See G.L. c. 94C, § 32. That the defendant knew he had heroin in his pocket is not seriously in contention. He ran away from the police and attempted to swallow the drugs, both indications that the defendant knowingly possessed the heroin. See Commonwealth v. LaPerle, 19 Mass.App.Ct. at 427, 475 N.E.2d 81.

As to intent to distribute, the evidence, while less penetrating, is sufficient. The defendant argues that the aborted hand-to-hand transaction that Officer Sullivan described as likely indicates that the defendant was a buyer as a seller. The Commonwealth's view, accepted by the jury, was that the defendant, with his partner Caraballo as facilitator and lookout, intended to sell drugs to whoever was in the car.

Whether the evidence is in equipoise is a nettlesome question and, in the end, turns on the specific facts of the case. For cases in which the court thought the evidence supported a finding of buying or possession equally with a finding of selling--and, thus, requiring a finding of not guilty of distribution--see Commonwealth v. Senati, 3 Mass.App.Ct. 304, 305-306, 327 N.E.2d 906 (1975); Commonwealth v. Wooden, 13 Mass.App.Ct. 417, 422-424, 433 N.E.2d 1234 (1982); Commonwealth v. Tripp, 14 Mass.App.Ct. 997, 998, 440 N.E.2d 1286 (1982); Commonwealth v. Reid, 29 Mass.App.Ct. at 538-539, 562 N.E.2d 1362; Commonwealth v. Navarro, 39 Mass.App.Ct. at 169, 654 N.E.2d 71. For cases in which the court thought the evidence sufficient to support a finding of selling, see Commonwealth v. Rivera, 425 Mass. 633, 648-649, 682 N.E.2d 636 (1997); Commonwealth v. Nichols, 4 Mass.App.Ct. 606, 614, 356 N.E.2d 464 (1976); Commonwealth v. LaPerle, 19 Mass.App.Ct. at 427, 475 N.E.2d 81; Commonwealth v. Gonzales, 33 Mass.App.Ct. 728, 731, 604 N.E.2d 1317 (1992); Commonwealth v. Soto, 45 Mass.App.Ct. 109, 111, 695 N.E.2d 683 (1998).

Here we have the defendant lingering on the same street corner for an extended period, over an hour, with a collaborator. He or Caraballo signals to passing cars. Those facts, alone, lend themselves more cogently to an inference of selling rather than buying. In the transaction that the police officer observed, it was Caraballo who stuck his head in a car that had stopped, took something from the driver, and then moved to Gonzalez, who took whatever it was with his left hand. Gonzalez, it will be recalled, was reaching into his right pants pocket to extract something when Caraballo noticed Officer Sullivan and gave the alarm. The reaction of Gonzalez was to toss whatever he had taken with his left hand from Caraballo back into the car. When Gonzalez went on the run he took packets of heroin from his right pocket and attempted to swallow them. Since what remained in the right pants pocket when the transaction aborted was heroin, it is a more than reasonable inference that money was what Gonzalez had received with his left hand and pitched back into the car. That sequence of actions is consistent with selling rather than buying. To be sure, Gonzalez did not have money on his person (a fact that cuts both ways because if he was a customer to buy in an aborted deal, one would expect him to have some money) and the weight of the ten packets of heroin was low. ² Evidence, however, is seldom unidirectional. It was not error to deny the motion for a required finding of not guilty.

3. Officer's testimony that he knew the defendant. Officer Sullivan testified over objection that the street corner he had placed under surveillance was in a high crime area where there was drug dealing. That was admissible under Commonwealth v. Rivera, 425 Mass. at 649, 682 N.E.2d 636, and Commonwealth v. Pena, 40 Mass.App.Ct. 905, 906, 661 N.E.2d 119 (1996). In addition, Sullivan was asked whether he had known the defendant and was allowed to answer that he knew the...