Com. v. Murphy

• Decision Date: 22 March 2004
• Citation: 577 Pa. 275,844 A.2d 1228
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Ronald L. MURPHY, Appellant.
• Court: Pennsylvania Supreme Court

844 A.2d 1228

577 Pa. 275

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

Supreme Court of Pennsylvania.

Submitted March 20, 2003.

Decided March 22, 2004.

James Brian Rader, Harrisburg, for Ronald Murphy, appellant.

Scott Alan McCabe, Sandra Ilene Thompson, Christian J. Dabb, for the Com. of PA, appellee.

Before: CAPPY, C.J., CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION OF THE COURT

Justice NIGRO.

Appellant Ronald Murphy ("Murphy") appeals from the Superior Court's order affirming the judgment of sentence imposed against him by the Court of Common Pleas of York County as a result of his convictions for delivery of a controlled substance, 35 P.S. § 780-113(a)(30),¹ and for conspiracy to deliver a controlled substance, 18 Pa.C.S. § 903.² We affirm.

On August 30, 2000, Pennsylvania State Trooper Timothy Longenecker, a member of the York County Drug Task Force, drove to the intersection of Queen and Liberty Streets in the City of York to make a controlled undercover purchase of heroin. Trooper Longenecker parked his car across the street from an apartment building where Murphy was seated on the front steps. The trooper exited his car, approached Murphy, and asked him if he knew where to buy some "dope," which the trooper testified was slang for heroin. See N.T., 3/9/2001, at 66. Murphy responded by asking Trooper Longenecker if he was a "cop." See id. After the trooper answered no, Murphy called out to another man across the street, Jose Rivas ("Rivas"), and asked him to come over. See id. at 66, 89.

Rivas walked over to the trooper and Murphy and immediately asked Murphy whether the trooper was a cop, to which Murphy replied "no, he's cool." See id. at 66. Rivas then turned to Trooper Longenecker and asked him how much drugs he wanted. See id. Trooper Longenecker stated that he wanted two bags. See id. at 67. Rivas told the trooper to "wait here" and then walked north down Queen Street. See id. Trooper Longenecker and Murphy remained behind and engaged in casual conversation. See id.

Several minutes later Rivas returned to Murphy and Trooper Longenecker and told Trooper Longenecker to follow him. See id. at 67. The two walked east on Liberty Street about one-half of a block. See id. at 93. At that point, Rivas dropped two bags of heroin on the ground and told the trooper to likewise drop the payment on the ground.³ Trooper Longenecker picked up the drugs, dropped two previously marked twenty-dollar bills on the sidewalk, and walked away. See id. at 67. As he walked, he turned around and saw Rivas picking up the money he had left on the sidewalk. See id. at 68, 94.

When the trooper reached his car, Murphy approached him and asked for half of a bag of heroin. See id. at 68. Although the trooper refused to give Murphy any drugs, he handed Murphy $5.00 before getting in his car and leaving the scene. See id. Moments later, other members of the York County Drug Task Force arrested Rivas and Murphy. Rivas was arrested in a grocery store approximately half of a block from the intersection where the drug transaction took place. See N.T., 3/8/2001, at 53. When he was arrested, he had the two marked bills used by Trooper Longenecker to buy the drugs. See N.T., 3/9/2001, at 101. Murphy was arrested as he crossed a street in the vicinity of where the drug sale took place. See N.T., 3/8/2001, at 35. Murphy only had a couple of dollars on him when he was arrested. See id. at 48. He did not have any drugs. See id. at 49.

Due to his participation in the transaction, Murphy was charged with the offense of delivery of a controlled substance as well as the offense of conspiracy to deliver a controlled substance. A jury trial was held on the charges on March 8 and 9, 2001. After the Commonwealth presented its case. Murphy moved for a judgment of acquittal on the basis of the "buyer's agent defense," which he argued was accepted by this Court in Commonwealth v. Flowers, 479 Pa. 153, 387 A.2d 1268 (1978).⁴ According to Murphy, because the evidence only showed that he introduced Trooper Longenecker to Rivas at the request of the trooper and that he did not further engage in the sale, he acted solely as the trooper's agent, i.e., the "buyer's agent" during the transaction and thus, pursuant to Flowers, he could not be liable for the delivery related charges against him. The trial court, however, found that the evidence was sufficient to convict Murphy of the charges and therefore denied his motion.

After all of the evidence was presented and prior to the jury's deliberations, Murphy requested an instruction on the "buyer's agent defense." The trial court denied the request, finding that the standard conspiracy instruction, which explained that the evidence must show that the co-conspirator intended to commit the crime and that mere presence at the crime scene was insufficient to establish such intent, satisfied Murphy's concerns with regard to the buyer's agent defense. The trial court subsequently gave such a conspiracy instruction as well as a similar instruction on accomplice liability.⁵ Following their deliberations, the jury convicted Murphy of both charges. As a result of his convictions, the trial court sentenced Murphy to twenty-three to forty-six months of incarceration on each conviction, with the two sentences to run consecutively.

Murphy appealed to the Superior Court, arguing that the evidence was insufficient to convict him of the delivery and conspiracy charges and that the trial court erred in refusing to instruct the jury on the "buyer's agent defense." As an initial matter, the Superior Court found that the evidence was insufficient to establish that Murphy was liable as a principal for delivering a controlled substance.⁶ See Commonwealth v. Murphy, 795 A.2d 1025, 1030-33 (Pa.Super.2002)

. Nevertheless, the Superior Court determined that there was sufficient evidence for the jury to convict Murphy for delivering a controlled substance as an accomplice. See id. at 1033-37. In particular, the Superior Court found that the jury could have found that Murphy aided Rivas in delivering the contraband with the intent to do so in light of the evidence showing that Murphy called out to Rivas after learning that Trooper Longenecker was not a police officer and that he then assured Rivas that the trooper was "cool." Id. Furthermore, the Superior Court determined that Murphy had an active interest in the sale and had not merely introduced the trooper to Rivas as a "friendly gesture of accommodation," as the appellant in Flowers had, because Murphy sought recompense from the trooper following the transaction. See id.

The Superior Court also found that the evidence was sufficient to convict Murphy of conspiring to deliver the drugs with Rivas. See id. at 1037-39. According to the court, the jury could have inferred that Murphy and Rivas had an agreement by which Murphy screened prospective drug buyers for Rivas to sell drugs to on the basis of the evidence showing that when Rivas came over to Murphy and the trooper after being called, he promptly asked Murphy whether the trooper was a "cop" and then, without asking any further questions, asked Trooper Longenecker how much drugs he wanted. See id. The Superior Court then determined that the trial court properly refused to instruct the jury regarding the "buyer's agent defense," finding that the defense was inapplicable as the evidence supported the delivery related charges against Murphy. See id. at 1040. Accordingly, the Superior Court affirmed Murphy's judgment of sentence.

Murphy filed a petition for allowance of appeal to this Court arguing that the lower courts erred in finding that the evidence was sufficient to support his convictions because such a decision contradicts this Court's decision in Commonwealth v. Flowers, 479 Pa. 153, 387 A.2d 1268. We granted allowance of appeal and now affirm the decision below.

In determining whether the evidence was sufficient to support a defendant's conviction, we must review the evidence admitted during the trial along with any reasonable inferences that may be drawn from that evidence in the light most favorable to the Commonwealth as the verdict winner. Commonwealth v. Rivera, 565 Pa. 289, 773 A.2d 131, 135 (2001). If we find, based on that review, that the jury could have found every element of the crime beyond a reasonable doubt, we must sustain the defendant's conviction.⁷ Id.

The offense of delivery of a controlled substance is provided for in section 780-113(a)(30) of The Controlled Substance, Drug, Device and Cosmetic Act, (the "Act").⁸ According to that section, the offense occurs in the following circumstances:

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). The term delivery, as used in this section, is defined by the Act as "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. Thus, for a defendant to be liable as a principal for the delivery of a controlled substance there must be evidence that he knowingly made an actual, constructive, or attempted transfer of a controlled substance to another person without the legal authority to do so. See Commonwealth v. Metzger, 247 Pa.Super. 226, 372 A.2d 20, 22 (1977)

("[t]he offensive conduct is simply the `actual, constructive or attempted transfer from one person to another' of the prohibited substance").

A defendant actually transfers drugs whenever he physically conveys drugs to another person.⁹ See Commonwealth v. Cameron, 247...