Com. v. Rosario
| Decision Date | 19 December 1990 |
| Citation | 583 A.2d 1229,400 Pa.Super. 505 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Aida L. ROSARIO. |
| Court | Pennsylvania Superior Court |
Joan Weiner, Asst. Dist. Atty., Philadelphia, for Com.
Helen McCaffrey, Philadelphia, for appellee.
Before CAVANAUGH, TAMILIA and HESTER, JJ.
This is the Commonwealth's appeal from a judgment of sentence which departed downward from the sentencing guidelines. Following appellee's conviction for the knowing possession and intent to distribute cocaine, she was sentenced to eleven and one-half (11 1/2) to twenty-three (23) months house arrest 1 followed by thirty-six (36) months probation. The sentence stems from appellee's nonjury conviction of running a cocaine distribution operation out of two row houses in Philadelphia.
On May 7, 1988, Philadelphia police received confidential information that a Hispanic female, known as "Lucy", was conducting the aforesaid drug operation out of her 2840-2842 North Franklin Street homes. On the same date, undercover officers went to the vicinity of the houses and were approached by a Hispanic male exiting 2840. The unidentified male offered to sell them one-sixteenth of an ounce of cocaine. The unidentified male re-entered the 2842 home and returned with the cocaine and completed the illegal transaction. Based on this information, police executed a valid search warrant and raided appellee's two row houses at 2840 and 2842 N. Franklin Street; 2840 served as a drug "sales" house, whereas 2842 was appellee's "stash" house. Inside 2840, police found women's clothing only, $280 cash on appellee's bedroom dresser, drug paraphernalia in her bedroom and throughout the house, and 29 grams of cocaine with an estimated street value of $2,900. Drugs were found in dresser drawers reserved solely for the storage of appellee's clothing, as well as in the kitchen area. The paraphernalia gave her the ability to grind, mix, weigh and package the cocaine for sale.
At trial, appellee introduced evidence attempting to infer that an unidentified man had been staying with her off and on for several months prior to the arrest. Appellee called Ms. Aurora Sosa and Larry Ulloa as defense witnesses. Sosa testified an unidentified man had been living or visiting with the appellee around the time of the search of her house (T.T., 5/31/89, pp. 57, 61). Ulloa stated, without identification or any specification, that a Hispanic male had been seen around the house at that time. Based on these scant assertions, appellee asked the court to go one step beyond and find that this phantom was her paramour, and had constructive possession of her house. On these inferences, the court was asked to infer the drugs and paraphernalia belonged to her unidentified friend. 2 The court rejected this baseless defense and found appellee guilty beyond a reasonable doubt of violating 35 P.S. § 780-113.
Our studied review of the record satisfies us that there is a wealth of evidence to support the trial court's finding appellee to be in constructive possession of the drugs and paraphernalia as well as to be operating a drug distribution operation out of her two North Franklin Street row homes. See Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983). However, in contradiction to its own rejection of the trial defense, the court imposed a lenient sentence, essentially ignoring the sentencing guidelines. 3 The sentencing court portrayed appellee's participation in the drug operation as peripheral and characterized her as a wholly submissive spectator to the drug operation carried out by her boyfriend. In making this finding, the court directly contradicted and ignored appellee's own testimony as set forth in pertinent part below:
(S.T., 5/31/89, pp. 7-9.) The dialogue showed the appellant to be inconsistent and defensive but established her guilty knowledge of the enterprise.
The judge's determination must not be disturbed absent a manifest abuse of discretion. Commonwealth v. Edrington, 490 Pa. 251, 416 A.2d 455 (1980). An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence on the record, discretion is abused. Commonwealth v. Jackson, 336 Pa.Super. 609, 627, 486 A.2d 431, 441 (1984).
It is apparent that the legislature has vested broad discretion in the trial court to impose a sentence appropriate to each case which comes before it. It is also apparent the legislature has provided a thorough though not exhaustive outline of considerations to focus the court's deliberations in choosing an appropriate sentence. It is only where a party can articulate reasons why a particular sentence raises doubts that this scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion. Determination of whether the sentence is "not appropriate," "clearly unreasonable," or "unreasonable" must be made with reference to the sentencing code as a whole, not solely with reference to the sentencing guidelines. Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); Commonwealth v. Darden, 366 Pa.Super. 597, 531 A.2d 1144 (1987). 42 Pa.C.S. § 9781(d).
Applying the abuse of discretion standard to the instant facts, we find the trial court erred. The evidence of record simply does not support the sentencing court's finding. As indicated by her testimony, appellee not only denied involvement in the drug operation but also denied full knowledge of the drugs presence in her home. However, by finding appellee guilty of the crimes charged, the court necessarily found appellee to have possessed the cocaine with the requisite intent to distribute. At sentencing, the trial court impermissibly disregarded this adjudicated fact and improperly sentenced appellee to house arrest for a period of time far less than the suggested mitigated minimum time for incarceration. The trial court reasoned appellant had technically possessed the cocaine only by virtue of owning the house in which the drug operation was conducted, and by permitting herself to be ruled by her overbearing, live-in, drug dealing paramour. The sentencing court stated:
The court took into consideration that the defendant's actions were peripheral, meaning that while she was not involved directly in the selling of the drugs, she was fully cognizant of the fact that drugs were around and she allowed them to be around in her house. The court did not believe that she was involved in the actual selling of drugs.
(Slip Op., Defino, J., 1/22/90, p. 3.)
If the rationale advanced by the sentencing court is correct, then the appellee should not have been convicted of possession with intent to distribute. Even under the sentencing rationale, as an accomplice, the court had, within the sentencing scheme provided by the guidelines, leeway to adjust the sentence in accordance with whether she was a central figure as opposed to one less directly involved. Accepting the sentencing court's rationale for the imposition of sentence as stated supra, on the one hand requires a finding of guilt when none existed, or punishment, however lenient, for a crime not committed. If the evidence establishes beyond a reasonable doubt the commission of the crime, as it did, then the rationale for sentencing cannot be sustained and is, therefore, unreasonable.
We hold that once a party is found guilty, the adjudicated elements of the offense must be fully considered and cannot be disregarded when fashioning a sentence. Thus, the question of whether or not defendant was an innocent observer to the crimes committed in her house by someone else, was fully, fairly and finally decided against her at the time of trial. The sentencing court is not empowered to rewrite the script and cast defendant as a woman who merely owned a house in which the illegal...
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