Commonwealth v. Hennigan

• Decision Date: 09 May 2000
• Citation: 753 A.2d 245
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Robert HENNIGAN, Appellant.
• Court: Pennsylvania Superior Court

753 A.2d 245

COMMONWEALTH of Pennsylvania, Appellee, v. Robert HENNIGAN, Appellant.

Superior Court of Pennsylvania.

Submitted August 9, 1999.

Filed May 9, 2000.

Richard E. Johnson, Philadelphia, for appellant.

Catherine Marshall, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before McEWEN, President Judge, and LALLY-GREEN and OLSZEWSKI, JJ.

LALLY-GREEN, J.:

¶ 1 Appellant Robert Hennigan appeals from the judgment of sentence dated October 8, 1998. Appellant was convicted of possession of a controlled substance with intent to deliver, criminal conspiracy, and firearms not to be carried without a license. We vacate the firearms conviction, affirm the remaining convictions, and remand for resentencing.

I.

¶ 2 The record reveals that on February 25, 1998, Philadelphia Police Officer Myra Jones of the Narcotics Field Unit drove to 4148 Westminster Avenue in an attempt to purchase drugs. N.T. Trial, 10/7/98, at 11. While she was in the house, Officer Jones gave a pre-marked $10 bill to co-defendant James Williams in exchange for two packets of crack cocaine. Id. at 16, 18.¹ Officer Jones left the apartment and immediately notified Officer Calvin Rayfield of the sale. Id. at 20.

¶ 3 Officer Rayfield encountered Mr. Williams on the first floor of the house. Id. at 145. Officer Rayfield found 30 packets of crack cocaine and one packet of marijuana on Mr. Williams' person. Id. at 146, 149. A female who was in the same room as Mr. Williams was released without being charged. Id. at 163.

¶ 4 Officer Palmer pursued someone who was fleeing to the second floor. Id. at 52. Officer Palmer then proceeded to the rear bedroom, where he saw two men and one woman fall backward out of an open window. Id. at 52, 54. The woman, co-defendant Monique Travers, threw a purse onto the floor before falling out of the window. Id. at 55-57. Officer Palmer found one hundred clear packets of crack cocaine, but no smoking paraphernalia, in the open purse. Id. at 57, 61.

¶ 5 Officer Louis Cujdik was assigned to guard the rear of the house. Id. at 85. He saw the second-floor rear window break, and then saw three people fall out the window and land on a pile of rubbish. Id. at 86-87. Two of the three were Ms. Travers and Appellant. Id. at 88.² Officer Cujdik found cash and a set of keys on Appellant's person. Id. at 88-89. Officer Cujdik then brought Appellant to the front of the house, and gave the cash to Officer Rayfield. Id. at 92. Officer Rayfield testified that he received the pre-marked $10 bill as well as $299 in cash from Officer Cujdik. Id. at 154-155, 172, 191.³ Officer Rayfield clearly remembered finding the marked bill in the property recovered from Appellant at the scene. Id. at 193. He then placed the money in an evidence bag. Id. at 191.

¶ 6 The marked ten dollar bill was not preserved as evidence in the case. Id. at 104. At trial, the Commonwealth presented a copy of the $10 bill, but not the original. Id. at 148. Officer Rayfield explained that the bill went back into the Narcotics Unit's "buy fund," and was used in another drug operation. Id. at 156.⁴ Property receipt 2122980, listing property received from Appellant, did not list the marked bill because "pre-recorded buy money goes back into our fund." Id. at 157-158; see also id. at 173 (it is not normal police procedure to put marked money on the property receipt, because the money belongs to the buy fund). Officer Rayfield wrote in an investigative report that Appellant was found with $299 in cash plus the pre-marked bill. Id. at 191. In another section of the report, however, Officer Rayfield wrote that the marked bill was recovered from Mr. Williams. Id. at 178. Officer Rayfield explained at trial that the latter entry "is just a simple typo." Id. at 193.

¶ 7 At the scene, Appellant told the officers that the car keys that Officer Cujdik had taken from Appellant fit his 1985 Buick Park Avenue that was parked across the street. Id. at 90. Officer Cujdik did not see Appellant operating the car, and did not know how long it had been since the car was last driven. Id. at 100. Officer Cujdik testified that he took the automobile to the police station for safekeeping because Appellant did not live in the area. Id. at 97-98. Officer Cujdik conducted an inventory search, and found a loaded .380 caliber handgun under a pile of clothes in the back seat. Id. at 90.

¶ 8 Before trial, Appellant moved to suppress the gun found during the inventory search. At the suppression hearing, Officer Cujdik was asked whether it is standard procedure "to remove cars from the front of homes when individuals who are charged with drug activity are arrested inside of homes." N.T. Suppression, 10/6/98, at 90-91. Officer Cujdik responded, "If we can ascertain that they own a vehicle, we would take it back with us. Yes." Id. at 91. Occasionally, Officer Cujdik commented, officers remove the arrestee's vehicle even when he is arrested from his own house. Id. Officer Cujdik further testified that in this case, the car was impounded for safekeeping because "the house that we had the search warrant for was almost abandoned" and because Appellant stated that he did not live in the area. Id. At a preliminary hearing, Officer Rayfield testified that Appellant's vehicle was impounded because Appellant had the keys and registration for it. Id. at 101.

¶ 9 The suppression court denied Appellant's motion to suppress without producing formal findings of fact or conclusions of law. The court did state the following on the record:

As to the keys, I think certainly the officers taking the car for safekeeping, since the defendant didn't live in that area, would certainly be a smart thing to do. As I have indicated, I know the area. I'll take judicial notice of the area of 41st and Westminster being a very low income area, and, of course, the allegations there's drug trafficking there, and especially that would not be a place that you would want to leave your car for safekeeping. Whether the individual said they wanted to move it or not would be of no moment, plus the District Attorney's citation from the Motor Vehicle Code seems to indicate that the police are required to take the car into safekeeping.

For all of those reasons and for the other reasons that are of record, the motion to suppress is denied.

Id. at 115-116; see also id. at 103 ("This Court is familiar with the area of 41st and Westminster. It's certainly not a place that you would want to leave a car unless you had some kind of access to it on a regular basis.").

¶ 10 At trial, Appellant presented the following defense: he went to the house to visit a friend; he did not know that drugs were being sold in the house; he did not buy or sell drugs; and, he never had possession of the pre-marked bill. N.T. Trial, 10/7/98, at 214-215, 217-218. After he heard "commotion" downstairs, Appellant ran away but said he did not know the reason he was running. Id. at 216. He had $299 in cash from a tax refund on his person. Id. at 218. Appellant admitted that he did not have a license for the gun in his car, but he explained that he was holding the gun for a friend. Id. at 222.

¶ 11 During closing arguments, Appellant's counsel argued that it was highly unlikely that Appellant received the marked bill from Mr. Williams in the five minute span between Officer Jones' drug buy and the time the police entered the house, particularly because Mr. Williams was found on the first floor and Appellant was first seen on the second floor. N.T. Trial, 10/8/98, at 21. In addition, he argued that the critical piece of evidence linking Appellant to the crime, the $10 bill, was not listed or mentioned on Appellant's property receipt. Id. at 25. He argued that Officer Rayfield did not commit a "typo" when he reported that the pre-marked $10 bill was found on Mr. Williams. Id. at 28. Rather, counsel argued, the police falsified the section of the report which indicated that the bill was found on Appellant:

Police Officer Rayfield, being an experienced police officer, had a suspicion. Any of us would. It's natural. Somebody is in a drug house. There's a bust. He's got cash on him, and he's got keys to a car where there's a gun, so there is a suspicion. I don't criticize him for that. But, ladies and gentlemen of the jury, you know what happened. His thinking is, "you know, this guy, he's got to be part of it. He's got to be in on this. I've been in the business a long time." He takes the ten dollars from this pile. Real simple, folks, you just move it right over here and you write up the report that way. I submit that's what happened here....

That ten dollar bill was never taken from my client, and the Commonwealth's own evidence shows that it wasn't. Human nature being what it is, for good, solid police officers who have an idea, a suspicion, they make mistakes. We know they make mistakes, and sometimes they will do something—

Maybe they even fool themselves. Maybe it's a subconscious thing. I don't know.

Id. at 28-30.

¶ 12 In response, Assistant District Attorney Andrew Kline argued that Appellant was in charge of handling the money for drug sales taking place in the house. Id. at 82-83. The prosecutor noted that Appellant had an unusually large number of small-denomination bills, and was the only person with money in the house. Id. The prosecutor also argued that Appellant's counsel improperly focused on Officer Rayfield's typographical error:

And against all of [the evidence against Appellant], ladies and gentlemen of the jury, [Appellant's counsel] says that the mistake was one word in a case with 20-some odd exhibits, with many, many pages of documents, with physical evidence, with testimonial evidence. Does he point to what Officer Cujdik said? What Officer Rayfield said? He doesn't point to that. He points to one word in a case with all of this evidence. One word. And [Appellant's counsel] stood before you and said, "I want you to look at the

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