Com. v. Johnson

• Decision Date: 16 November 1992
• Citation: 421 Pa.Super. 433,618 A.2d 415
• Parties: COMMONWEALTH of Pennsylvania v. Aaron JOHNSON, Appellant.
• Court: Pennsylvania Superior Court

Page 415

618 A.2d 415

421 Pa.Super. 433

COMMONWEALTH of Pennsylvania v. Aaron JOHNSON, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 16, 1992.

Filed Nov. 16, 1992.

Joel I. Fishbein, Philadelphia, for appellant.

Karen A. Brancheau, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before McEWEN, DEL SOLE and HUDOCK, JJ.

DEL SOLE, Judge.

This a direct appeal from a judgment of sentence imposed for the convictions of knowing or intentional possession of a controlled substance and possession of a controlled substance with intent to manufacture or deliver. Finding no abuse of discretion or error of law by the trial court, we affirm.

On August 8, 1990, Philadelphia Police Officer Genaro Fontanez was working with a partner on a drug surveillance assignment in a North Philadelphia neighborhood. Officer Fontanez observed Appellant, Aaron Johnson, approach a car at the intersection of Somerset and Reese Streets, one-half block away. Appellant briefly conversed with the driver and then handed him a green plastic packet, receiving money in exchange. Officer Fontanez followed Appellant until he reached Reese Street, where the officer lost sight of him for a brief moment. The officer next observed Appellant holding a paper bag, which he placed underneath a tire lying on the pavement. Appellant proceeded up Reese Street to the residence of Leslie Waters, approximately one hundred fifty feet away from the location of the bag. Upon reaching Ms. Waters' house, Appellant joined several neighbors who were working on Ms. Waters' car in front of her home.

Officer Fontanez went to investigate the contents of the paper bag left under the tire, while his partner apprehended Appellant. The bag contained $1503.00 and five hundred twenty-seven small green packets of a white substance, which tested positive for the presence of cocaine and had a street value in excess of $35,000.00.

A jury found Appellant guilty of knowing or intentional possession of a controlled substance and possession of a controlled substance with intent to manufacture or deliver. Timely post-verdict motions were filed, and new counsel was appointed. The trial court, after hearing argument on the motions, denied them and imposed a sentence of five to ten years' imprisonment and a mandatory fine of $25,000.00, pursuant to 18 Pa.C.S.A. § 7508(a)(3)(iii). This appeal followed.

Appellant raises six issues for review:

1) Whether the verdict was supported by sufficient evidence, and whether the verdict was against the weight of the evidence and contrary to law?

2) Whether the supplementary instruction given to the jury regarding the legal definition of possession was contrary to law and highly prejudicial?

3) Whether trial counsel was ineffective for failing to give notice of an alibi defense, and for failing to request the standard alibi instruction?

4) Whether the sentence imposed constituted an aggravated sentence according to the sentencing guidelines and whether the court placed on the record any circumstance justifying an aggravated sentence?

5) Whether Appellant's prior conviction for a weapons misdemeanor was too remote to be considered in his sentencing?

6) Whether the mandatory fine set forth in 18 Pa.C.S.A. § 7508(a$)(3)(iii) is unconstitutional on its face and as applied in Appellant's case?

First we address Appellant's claims regarding the weight and sufficiency of the evidence in his case. Appellant argues that because he was not seen with the paper bag in his hand for any substantial period of time prior to the officer's observance of him placing the bag under the tire, there was no evidence that Appellant exercised dominion and control over the bag.

In reviewing for sufficiency of evidence the test is whether the evidence, viewed in the light most favorable to the Commonwealth as the verdict winner, and drawing all reasonable inferences therefrom, is sufficient to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818 (1989). In the instant case, the officer did see the bag in Appellant's hand for a brief instant before Appellant secreted it in the tire. (N.T. 1/11/91, 28). The jury could correctly infer from the fact that Appellant hid the bag that he intended to exercise dominion and control over it; one does not deliberately hide property to which he is relinquishing ownership. Therefore, we find the evidence to be sufficient for the jury to have found every element of the crimes charged proven beyond a reasonable doubt.

Appellant does not specifically argue in what manner the verdict is against the weight of the evidence; however, we note that it is the jury's prerogative to believe all, part or none of the evidence, Id., and there is no inconsistency between the evidence and the verdict so as to shock our sense of justice. Commonwealth v. Hunter, 381 Pa.Super. 606, 554 A.2d 550 (1989). Therefore, Appellant's argument concerning the weight of the evidence also fails.

Appellant's second contention on appeal is that the trial court's supplementary instruction regarding the legal definition of possession was contrary to law and highly pre$judicial. When the jury requested that the court re-read Officer Fontanez's testimony regarding Appellant's discarding the paper bag, the court refused and instead gave an instruction concerning the legal definition of possession. Appellant claims that the instruction unfairly drew the jury's attention to a hypothetical basis for a guilty verdict that was not supported by the evidence or testimony.

When a jury requests that recorded testimony be read to it to refresh its memory, it rests within the trial court's discretion to grant or deny such request. Commonwealth v. Bell, 328 Pa.Super. 35, 476 A.2d 439 (1984). We find no abuse of this discretion in the trial court's refusal to re-read the officer's testimony. In the instant case, the supplemental instruction given was in accordance with the standard jury instruction and took into account both the testimony of Officer Fontanez and Appellant's testimony. Therefore, the instruction was neither erroneous nor contrary to law.

Appellant's third claim is that trial counsel was ineffective for failing to give notice of an alibi defense and for failing to request the standard alibi instruction. Appellant contends that the testimony of Leslie Waters and her two neighbors establishes that Appellant was in front of Ms. Waters' house, and not at the corner where the drug transaction occurred, for at least five minutes and as much as an hour. Therefore, he claims that because he presented substantial evidence that he was at a place other than the scene of the crime, he deserved to have the jury properly consider an alibi defense.

In the instant case, the testimony of the witnesses does not place Appellant away from the scene of the crime, but rather implies that Appellant was at the scene and that the officers mistakenly identified him as the one who had hidden the bag, instead of the two men Ms. Waters saw running by her. (N.T. 1/11/91, 64-67, 72). Therefore, Appellant was not entitled to an alibi instruction, as he did not present an alibi defense, and accordingly, this claim is meritless. Trial counsel was not ineffective for failing to assert a baseless claim. Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1...