Commonwealth v. Harris
| Decision Date | 28 June 1976 |
| Parties | COMMONWEALTH of Pennsylvania v. Carl T. HARRIS, Appellant. |
| Court | Pennsylvania Superior Court |
John J. Dean, Anthony J. Lalama, Pittsburgh, for appellant.
John J. Hickton, Dist. Atty., Robert L. Eberhardt, Asst. Dist Atty., Pittsburgh, for appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE PRICE, VAN der VOORT and SPAETH, JJ.
On April 17 1975, appellant was found guilty by a judge sitting without a jury of possession of a controlled substance (heroin) [1] and possession with intent to deliver a controlled substance (heroin). [2] Motions in arrest of judgment and for a new trial were denied on June 12, 1975, and appellant was sentenced to a term of imprisonment of eleven and one-half months to twenty-three months on the conviction of possession with intent to deliver. Sentence on the conviction of simple possession was suspended.
Appellant raises two points of alleged error on appeal. However, appellant's argument that the lower court erred in admitting opinion testimony was not raised in post-trial motions and we must, therefore, consider it waived. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). We find appellant's remaining argument, that the evidence was insufficient to sustain the conviction of possession with intent to deliver, to be without merit and we will, therefore, affirm the judgments of sentence of the lower court.
The facts indicate that on November 22, 1974, at approximately 9:20 p.m., Pittsburgh Police Detective Ralph McDaniel received information from a reliable confidential informant that appellant was carrying 'a bunch of stuff' and was on his way to meet several other persons. Detective McDaniel and his partner, accompanied by the informant, drove to Centre Avenue in Pittsburgh where the informant pointed out the appellant standing in an alley near a white Buick automobile. After the informant left the officers, they approached appellant. However, appellant got into the rear seat of the Buick and it was driven away. The officers pursued by car and stopped the Buick after four or five blocks. Detective McDaniel noticed appellant leaning forward and putting his hands between his legs as if he were trying to hide something under the seat. When the detective examined the interior of the car, he found a bag containing sixteen half-spoons of heroin on the floor between appellant's legs. A further search of the Buick at the police station revealed two measuring spoons in the glove compartment and a small scale in the trunk. The Buick was registered to the driver, one of appellant's co-defendants.
It is elementary that Commonwealth v. Kinnard, 230 Pa.Super. 134, 143, 326 A.2d 541, 545 (1974). When we so view the evidence in the case at bar, we find it sufficient to support the conviction.
Our supreme court has held that, under the proper facts and circumstances, possession of a sufficient quantity of a narcotic drug will permit the inference that the possessor had an intent to deliver the drug. Commonwealth v. Santiago, 462 Pa. 228, 340 A.2d 440 (1975). Although the quantity involved in Santiago was considerably greater than that in the instant case, we feel the facts here bring this case under the Santiago reasoning. [3]
We are persuaded by the testimony of the arresting officer, Detective McDaniel, called by the Commonwealth as an expert witness. Detective McDaniel stated that he had been assigned to the narcotics division for nine years, and that he had made many arrests for narcotics violations during the year previous to this arrest. He was well acquainted with the drug culture and showed an in-depth knowledge of the street value of drugs and of the habits of drug users. Detective McDaniel testified, on direct examination:
'BY MR. ADAMS: (Assistant District Attorney)
Q. Is there a normal user of heroin that you have found in your work as a narcotics police officer?
A. Yes.
Q. Could you describe that normal user for us?
A. The normal user I came in contact, usually, had one or two, in the old days, it was small capsules; this day, one or two, possibly three, half spoons. This is for a guy that's gonna use it for hisself. Q. Okay.
Now, could you relate to us how you made that observation as to the user that you have just described?
A. I made it based on the arrests that I made, the number of arrests.
Q. Approximately, how many arrests of users have you made in the year preceding November 22, 1974,--
A. Just--
Q.--Approximation?
A. Just in that one year?
Q. Yes.
A. It had to be over fifty, I know, probably way over fifty.
Q. And were there many more in the the nine years that you have been a narcotics officer?
A. More than I care to remember.
Q. Okay.
Now, have you made arrests concerning people who were subsequently convicted of possession with intent to deliver a controlled substance,--
A. Yes.
Q.--namely, heroin?
A. Yes, sir.
Q. In the year preceding November 22, 1974, could you give me an approximation of how many arrests you have made of people who were subsequently convicted of possession with intent to deliver a controlled substance?
A. That's a more difficult answer. It's several dozen.
Q. Now, in the years that you were a police officer, prior to that year that I just mentioned, the eight previous years, approximately, how many arrests were made concerning people who you arrested that were subsequently convicted of possession or possession with intent to deliver?
A. In the hundreds. As I say, I don't keep accurate--It was well in the hundreds.
Q. Now, based on your prior arrests, could you give us an opinion as to the amount that Mr. Harris contained? Could you give us an opinion as to whether or not this particular individual had it for his own use or whether he had possession of it with intent to deliver?
MR. SHULGOLD:
This is objected to, if the Court please. I do not think the witness is capable of answering that question.
MR. ADAMS:
Well, I think, I am entitled to ask him an opinion.
MR. SHULGOLD:
It would be sheer speculation.
MR. ADAMS:
I think, I have qualified him as an expert.
He has testified now.
MR. SHULGOLD:
He is not a user.
No, but to hear from a doctor does not necessarily have to be sick, something about a disease to which he is testifying.
Objection is overruled. BY THE WITNESS:
A. Based on my experience and arrests and information that I know about narcotics, the amount involved here is sixteen would indicate to me that because of the amount it would not be for an independent use of that person. It would indicate to me and lead me to believe that this amount was used for another purpose, and that being to sell or distribute or what have you, not for personal use.
BY MR. ADAMS:
Q. Okay. Thank you.' (NT 84--87).
The lower court considered the detective's testimony that the amount in appellant's possession was more than would be carried by a person for his personal use, and found appellant guilty of possession with intent to deliver. Commonwealth v. Garvin, 448 Pa. 258, 269, 293 A.2d 33, 39 (1972). We cannot say that this finding was 'manifestly erroneous.'
The judgments of sentence are affirmed.
Appellant's sole contention is that the Commonwealth's evidence was insufficient to prove that he possessed sixteen 'half-spoons' [1] of heroin with intent to deliver.
The facts, with minor exceptions, are undisputed: At 9:20 p.m., November 22, 1974, Ralph McDaniel, a plain-clothes police officer employed by the Pittsburgh Police Department, received a tip from a confidential informant that appellant was carrying 'a bundle of stuff wrapped in silver foil' and was going down the street to 'meet some dudes.' MdDaniel and Detective Norman Stewart picked up the informant and drove to Centre Avenue. The informant pointed out the appellant, who was standing near a white Buick parked just off Centre Avenue. After dropping off the informant, the police returned to the parked car. As the police approached, appellant got into the rear of the vehicle and was driven away. The police followed the car for several blocks before they stopped it. As they approached, McDaniel observed appellant place something beneath the rear seat. McDaniel's search netted a brown bag containing sixteen 'half-spoons' of heroin. A subsequent search at police headquarters uncovered two measuring spoons in the glove compartment and a small scale in the trunk of the Buick. The car was registered to the driver, one of appellant's two co-defendants.
On April 17, 1975, appellant's motion to suppress the physical evidence was denied; after a waiver of jury trial, the same court which heard the suppression motion found appellant guilty of possession of a controlled substance [2] and possession with intent to deliver. [3] On June 25, 1975, appellant was sentenced to a term of imprisonment of 11 1/2 to 23 months on the charge of possession with intent to deliver; sentence was suspended on the possession charge.
The only issue on appeal is whether the...
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Com. v. Harris
...359 A.2d 407 241 Pa.Super. 7 COMMONWEALTH of Pennsylvania v. Carl T. HARRIS, Appellant. Superior Court of Pennsylvania. June 28, 1976. John J. Dean, Anthony J. Lalama, Pittsburgh, for appellant. John J. Hickton, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Pittsburgh, for appellee. ......