Commonwealth v. Johnson, 32 EAP 2009
| Decision Date | 16 August 2011 |
| Docket Number | No. 32 EAP 2009,32 EAP 2009 |
| Parties | COMMONWEALTH OF PENNSYLVANIA, Appellee v. OMAR JOHNSON, Appellant |
| Court | Pennsylvania Supreme Court |
[J-2-2010]
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
Appeal from the Order of the Superior
Court entered on March 12, 2007 at No.
1158 EDA 2005 affirming the Judgment of
Sentence entered on March 14, 2005 in
the Court of Common Pleas of
Philadelphia County, Criminal Division, at
920 A.2d 873 (Pa. Super. 2007)
OPINIONMADAME JUSTICE TODD
This appeal concerns possession with intent to deliver heroin and, specifically, the question of whether the trial court properly calculated the total weight of heroin for the purpose of imposing a mandatory minimum sentence under 18 Pa.C.S.A. § 7508(a)(7)(i) of the Crimes Code. We hold that the trial court erred in finding that a single purchase of one bundle of packets of heroin from a third person, who retrieved the bundle from a parked Buick automobile, coupled with Appellant Omar Johnson's immediate resale of that bundle to an undercover officer, formed an adequate basis for its conclusion that Appellant was in constructive possession of a second bundle of packets of heroin stored inside of the Buick discovered during a subsequent police search of it. Accordingly, because the amount of heroin seized from the Buick was erroneously included by the trial court in the calculation ofthe total amount of heroin Appellant was found to have possessed with intent to deliver, thereby resulting in an improper imposition of a mandatory minimum term of three years imprisonment under 18 Pa.C.S.A. § 7508(a)(7)(i), we reverse and remand for resentencing.
The following relevant factual history of this case has been gleaned from the trial court's opinion and the certified record. On June 16, 2004, Philadelphia narcotics officer Richard Gramlich was conducting an undercover drug investigation when he received information from a confidential informant that someone named "Omar" was selling a brand of heroin called "party," as well as Oxycontin tablets. N.T. Trial, 2/15/05, at 9, 23. The informant additionally provided Officer Gramlich with a telephone number, which the informant claimed belonged to Omar and could be used to arrange a purchase of these drugs.
When Officer Gramlich dialed the number, a person identifying himself as Omar answered. Officer Gramlich informed this individual that he wanted to purchase "a bundle of party and three oxy-40s." 1 N.T. Trial, 2/15/05, at 9. Omar told Officer Gramlich to meet him at the intersection of Seventh and Girard streets in the City of Philadelphia. After Officer Gramlich had secured the assistance of backup officers, he proceeded to that location. Once there, Officer Gramlich had another phone conversation with Omar, and they finally met, face to face, in the parking lot of a Laundromat located at 600 Girard Street. Id. at 9-10. The individual whom Officer Gramlich met in person was Appellant, Omar Johnson.
Officer Gramlich requested that Appellant enter his unmarked car, and, after Appellant complied, Officer Gramlich repeated his prior request for heroin and Oxycontin. Id. at 10. At this point, Appellant exited the vehicle and spoke to another individual, later identified as Raheem Stoner, and the two entered Stoner's car — a green Chevrolet Lumina. Id. at 11. After a brief time, Appellant emerged from Stoner's car, re-entered Officer Gramlich's car, and handed Officer Gramlich a bundle of 11 packets stamped "party," as well as two tablets which Appellant claimed were Oxycontin. Id. at 12. In turn, Officer Gramlich gave Appellant $180.00 in pre-recorded buy money with pre-recorded serial numbers, after which Appellant left the vehicle and began walking towards Stoner's car. Officer Gramlich then left the scene; however, one of his backup officers observed Appellant hand all of the money he had received from Officer Gramlich to Stoner. Id. at 12. Officer Gramlich later "field tested" the contents of one of the packets in the bundle he had obtained from Appellant, and he determined the test was positive for the presence of heroin. Id. at 13.
Two weeks later, on June 30, 2004, Officer Gramlich called Appellant to set up another drug transaction and they, again, arranged to meet at Seventh and Girard Streets. When Officer Gramlich arrived at this location, Appellant entered his vehicle and Officer Gramlich, once more, asked for a bundle of "party" heroin and three 40 milligram Oxycontin tablets. Appellant expressed uncertainty that he could obtain the Oxycontin due to the fact it was late in the day but stated that he would, nevertheless, make an effort to do so. Appellant left the car, entered a nearby bar, and returned a short time later with what he claimed was an 80 milligram Oxycontin tablet, for which Officer Gramlich paid him $50.00 inpre-recorded "buy money." Appellant then departed the scene in his own vehicle to obtain the requested heroin. Officer Gramlich remained behind to await his return.
Other officers followed Appellant once he had left Officer Gramlich's presence, and these officers observed Appellant meet another unidentified individual who retrieved something from a parked automobile2 and handed it to Appellant. After this exchange, Appellant returned to where Officer Gramlich had parked, re-entered Officer Gramlich's vehicle, and took out a bundle of 13 packets stamped "polo" from his sock. According to Officer Gramlich, he gave Appellant $120.00 in pre-recorded buy money, and Appellant told him: "Next time call with your order so I don't have to run around." Id. at 15. After Appellant left, Officer Gramlich field tested one of the packets from this bundle, and it tested positive for heroin.
Finally, on July 6, 2004, Officer Gramlich made contact with Appellant by phone and asked him for another bundle of heroin, as well as an 80 milligram Oxycontin tablet. Officer Gramlich and Appellant once more met at the intersection of Girard Avenue and Seventh Street, whereupon Appellant got into Officer Gramlich's vehicle. Appellant took out a bundle of 12 packets of heroin bearing the stamp "check due." Officer Gramlich asked Appellant if he could obtain another bundle. Id. at 18. In response, Appellant stepped out of the vehicle and made a call, during which Officer Gramlich heard Appellant say he wanted "one jaun," which Officer Gramlich interpreted to mean a request for one bundle of heroin. Id. Appellant concluded the conversation, re-entered the vehicle, and told Officer Gramlich to drive up Seventh Street, which he did. Id.
At the intersection of Seventh and Master Streets, Appellant asked Officer Gramlich to pull over. Id. at 19. Appellant alighted from the vehicle and walked towards a gold Buick parked nearby. Another person, later identified as William Wilson, got out of the Buick, shook hands with Appellant, and began talking with him. According to Officer Gramlich this conversation occurred on the southwest corner of Seventh and Master Streets. Id. After a brief time, Officer Gramlich saw Wilson return to the Buick, reach inside the glove compartment area and retrieve a bundle of 13 packets, which bore the stamp "new era."3 Id. at 19-20. Officer Gramlich then observed Wilson walk back to Appellant and give him these packets.4 Appellant, in turn, walked over to Officer Gramlich's car and gave the packets to Officer Gramlich in exchange for $120.00 in pre-recorded buy money. Officer Gramlich watched Appellant subsequently return to Wilson and give him this money, as well as additional money which Appellant had in his pocket. Officer Gramlich saw the two men shake hands, after which Appellant re-entered Officer Gramlich's vehicle. Id. at 21. Officer Gramlich drove Appellant back to the Laundromat, which was the site of their first meeting, dropped him off, left the scene, and radioed backup officers to arrest Appellant. When he was taken into custody, Appellant was found with $140.00 in prerecorded buymoney, additional cash, and two cell phones, one of which was the one used to communicate with Officer Gramlich. Id. at 51. Appellant's car was searched but no contraband was found therein. Id. at 45.
Stoner and Wilson also were arrested on July 6. A search of Stoner's car revealed a .45 caliber handgun, 12 packets of crack cocaine, and two tablets. Wilson was discovered to be carrying on his person $80.00 in pre-recorded buy money and the keys to the Buick from which he previously retrieved the bundle of 13 "new era" packets for Appellant. Officer Gramlich subsequently obtained a warrant to search the Buick. This search yielded a second bundle of twelve packets stamped "new era," as well as 14 packets of a chunky white substance, one packet of which was later tested by the Philadelphia Police Crime Laboratory and determined to be cocaine base. Id. at 21-22, 53.
With respect to the events of July 6, 2004, Appellant was charged via criminal information with one count of violating 35 P.S. § 780-101 (), one count of violating 35 P.S. § 780-113(a)(30) (), one count of violating 18 Pa.C.S.A. § 903 (),5 and one count of violating 18 Pa.C.S.A. § 7512 ().
Appellant proceeded to a bench trial before former Philadelphia Common Pleas Court Judge Leslie Fleisher. At this trial Officer Gramlich testified, as did the other officerswho had participated in the surveillance and apprehension of Appellant. Additionally, the Commonwealth introduced into evidence laboratory reports prepared by the Philadelphia Police Crime Laboratory detailing the analysis its technicians had performed on the contents of the bundles of...
To continue reading
Request your trial