Com. v. Haring, O. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OPAL MARIE HARING :
:
Appellant : No. 370 WDA 2018
Appeal from the Judgment of Sentence December 28, 2016
In the Court of Common Pleas of Greene County Criminal Division at
No(s): CP-30-CR-0000275-2015
BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER*, J.
MEMORANDUM BY BOWES, J.: FILED JUNE 11, 2019
Opal Marie Haring appeals from the December 28, 2016 judgment of
sentence of three years of county intermediate punishment, which was
imposed following her conviction of possession with intent to deliver (“PWID”).
After careful review, we affirm.
Appellant’s conviction stems from a controlled drug buy arranged and
supervised by the Greene County Drug Task Force. The Commonwealth’s
evidence at trial revealed the following. Confidential informant Shawna
Jeffries (“CI”)1 agreed to solicit and buy four Subutex pills from Appellant, a
long-time friend. The law enforcement detail and the CI met at the courthouse
on February 12, 2015, for a briefing about the operation. Officer Lisa Sowden
of the Waynesburg Borough Police Department conducted a search of the CI,
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1 The CI’s identity was revealed at trial.
* Retired Senior Judge assigned to the Superior Court.
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and Detective Michael Hampe, employed by the Greene County DA’s office,
drove the CI to the buy site at 291 High Street. A second car containing
Officer Sowden, Chief County Detective David Lloyd and Detective Donald
Cross, followed for purposes of providing rolling surveillance and back up. On
the way, Detective Hampe gave the CI $100 in pre-recorded official funds.
Detective Hampe parked the car on East Street, a short distance from
the intersection with High Street. A white female, whom he later identified as
Appellant, was standing on the corner. She crossed over High Street and
approached his vehicle. He remained in the car as the CI exited and met the
woman behind the car. The two women had a brief conversation, and then
they walked back toward 291 High Street where Detective Hampe lost sight
of them because there was a wall obstructing his view. Detective Hampe did
not see any transaction take place. The CI returned to the car and handed
Detective Hampe a small brown envelope that contained three round pills
imprinted with the number 54411 and $20 in cash, and they proceeded to a
predetermined meeting place.
As the foregoing events were occurring, Detective Cross was driving the
surveillance vehicle. Detective Lloyd was seated in the front passenger seat
and Officer Sowden was located in the rear passenger seat. According to
Officer Sowden, they headed west on High Street and observed Detective
Hampe as he parked on North East Street. They saw the CI leave the vehicle
and walk with Appellant, who was personally known to Officer Sowden. After
the two women turned right onto High Street at the stop sign, Officer Sowden
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saw them stop near a silver four-door Volkswagen that was parked. Officer
Sowden testified “[t]here was a movement between them and they parted
ways after that.” N.T., 9/29/15, at 119. However, she “did not see any type
of exchange as far as like a hand-to-hand or anything like that, anything
notable.” Id. at 122. Officer Sowden did not see anyone in the parked
vehicle. She observed the CI turn and head back down the hill toward
Detective Hampe’s car. When Detective Hampe and the CI later met up with
the surveillance team at the pre-arranged location, Officer Sowden again
searched the CI, but found no drugs, money or paraphernalia. Id. at 120.
The Commonwealth presented the testimony of lab technician Robert
Elsavage, who had examined the three pills and confirmed that they were
buprenorphine, a Schedule III controlled substance. The Commonwealth also
called Nicholas Palmer. Mr. Palmer, a neighbor and friend of Appellant,
acknowledged that he called the Waynesburg Police on April 22, 2016, and
recalled making a statement to police, but maintained that he was high at the
time. He testified that Appellant had asked him to go to court to tell the truth,
and she did not offer him anything in return, which was purportedly
inconsistent with his statement.
According to Mr. Palmer, on the date in question, he was seated in the
back seat of the parked car, a blue Volkswagen owned by “Mike,” a friend of
Appellant from West Virginia. Appellant exited the car and walked toward the
intersection where she met the CI, Shawna Jeffries, whom he also knew. As
the two women approached the car in which he and Mike were sitting, he
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heard the CI asking for pills, and Appellant refusing to provide them. He
described the CI as “delirious.” Id. at 161. When he realized that the CI was
not going away, he put three of his “subs” on the seat, she grabbed them,
hugged Appellant, and walked away. Id. at 156. Mr. Palmer did not see any
money. The pills he provided were not prescribed for him and they were not
contained in an envelope or bag.
Mr. Palmer explained that he and Appellant subsequently had a falling
out after he falsely accused her of taking his aunt’s laptop. He spit in
Appellant’s face, and she struck him. He reported that incident to the
Waynesburg Borough Police, and subsequently gave the statement to Officer
J. Hanley.2 Officer Hanley testified that Mr. Palmer was upset and agitated
when he gave the statement, but he did not seem intoxicated. The officer
also confirmed that Appellant called the police the same day and that there
were charges of harassment pending against her for having slapped Mr.
Palmer. Officer Hanley supplied the statement to Detective Lloyd, and it was
admitted into evidence as a prior inconsistent statement.
Thus, at the close of the Commonwealth’s case, it was uncontroverted
that Appellant was prescribed Subutex, the brand name for buprenorphine, a
Schedule III controlled substance, which had less potential for addiction than
schedule I and II drugs. There was no direct evidence that Appellant
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2 It appears that in his statement to police, Mr. Palmer stated that Appellant
offered him pills if he would testify at trial.
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possessed or supplied the CI with the controlled substance, and Mr. Palmer
had admitted that he provided the pills.
The defense recalled Detective Hampe to the stand. The detective
testified that the CI provided a written statement in which she reported that
Appellant only wanted to sell her one pill, but when the CI begged for more,
Appellant acquiesced. The CI said that Appellant reached into the car, grabbed
her bottle, and gave the CI two more pills, and the CI paid her $80. Detective
Hampe confirmed that when he received the pills from the CI, they were in a
small brown envelope. Id. at 181.
Detective Cross testified that his narcotics unit had arrested the CI for
other violations and, thereafter, she agreed to assist law enforcement. He
also obtained the license plate number on the car parked next to Appellant
and the CI, which he subsequently determined was owned by Michael Dingus
of Blacksville, West Virginia. Id. at 201. However, he did not look inside the
vehicle to see if anyone was present. Detective Lloyd saw the parked car in
front of 291 East High Street, but he also did not see anyone in the car.
Beth Downer, Appellant’s adult probation officer, confirmed that
Appellant was under supervision. In January 2015, Appellant was attending
a mental health and substance abuse program. She was also enrolled in a
Subutex program and subject to regular pill counts as a condition of
participation. On February 18, 2015, Ms. Downer met with Appellant and
personally performed a pill count. There were no irregularities. Ms. Downer
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continued to supervise Appellant and there had been no subsequent violations
of the pill counts.
Appellant took the stand in her own defense. She testified that she is a
recovering heroin addict with two daughters, a seven-year-old and an eight-
month-old. She and the CI had been friends since high school. Appellant had
given the CI money, rides, and a place to stay. Appellant kicked the CI out of
her house in January 2015, because she left needles and crack pipes around
Appellant’s daughter. Appellant was working at the time, going to the Subutex
clinic once a month, and attending AA and NA meetings. She acknowledged
that she still had cravings, but that the Subutex helped her resist the urge.
Appellant testified that the CI called her and said she wanted to buy four
Subutex. Appellant offered to break the pill in half that she takes at night and
give the CI half, but the CI insisted she needed to buy four pills. Appellant
told the CI that she could not sell her the pills, but the CI wanted to talk to
Appellant. Appellant agreed, but advised the CI that her boyfriend Mike
Dingus was on his way from Morgantown to take her out for Valentine’s Day.
Appellant testified to the following sequence of events. She met the CI
in front of her house. The CI held out money, and Appellant refused. The CI
wanted to see if anyone in the car could help her, and diverted her attention
to Dingus and Palmer who were seated in the car. Appellant testified that she
did not give the CI any pills. All she had on her person was one-half of one
pill that she was going to give the CI to alleviate the CI’s sickness, but the CI
would not accept it. Id. at 223. Appellant testified that she subsequently
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learned that Mr. Palmer set three pills on the seat and told the CI to take them
and leave. When Appellant later was arrested on these charges, she
confronted both Mr. Dingus and Mr. Palmer, and told them that whoever
provided the pills to the CI should speak up because she was not going to jail
and losing her children for someone else’s conduct.
At the close of all the evidence, Appellant moved for judgment of
acquittal on the possession charge. She argued that she could not be guilty
of illegally possessing a controlled substance as she had a prescription for the
Subutex. The Commonwealth agreed and withdrew the possession charge.
Two counts were submitted to the jury: PWID and delivery of a controlled
substance. The jury acquitted Appellant of the delivery charge, but found her
guilty of PWID.
Following her sentencing on December 28, 2016, Appellant filed a timely
post-sentence motion in which she challenged the sufficiency of the evidence
supporting her PWID conviction, alleged that the verdict was against the
weight of the evidence, and asserted that restitution was improper. On
February 8, 2018, the court denied the post-sentence motion. Appellant
timely appealed, and both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant presents three issues for our review:
1. Where the [A]ppellant legally possessed prescribed
medication, is the evidence sufficient to convict [Appellant]
where a former dear friend acting as [a CI] to gain
consideration for her legal difficulties acts for the drug task
force, begs [A]ppellant to sell four pills for $100, but
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[A]ppellant refuses, and when after repeated harassment by
the [CI], [A]ppellant considered sharing one of her own pills
but a third person acting for himself to stop the ordeal gives
the informant three pills which the [CI] grabs and returns to
the task force car?
2. Did the trial court abuse its discretion in not awarding the
[A]ppellant a new trial under the circumstances where the
Court and jury rejected the Commonwealth’s version of the
incident and the verdict was against the weight of the
evidence?
3. Was the conduct of the [A]ppellant such that the charge of
[p]ossession with [i]ntent to deliver should be dismissed as de
minim[i]s?
Appellant’s brief at 10.
Appellant alleges first that the evidence was insufficient to sustain her
conviction of PWID, especially since she was acquitted of delivery of a
controlled substance. In conducting our review of the sufficiency of the
evidence,
we view all of the evidence admitted, even improperly-admitted
evidence. We consider such evidence in a light most favorable to
the Commonwealth as the verdict winner, drawing all reasonable
inferences from the evidence in favor of the Commonwealth.
When evidence exists to allow the fact-finder to determine beyond
a reasonable doubt each element of the crimes charged, the
sufficiency claim will fail.
Commonwealth v. Haynes, 116 A.3d 640, 656 (Pa.Super. 2015) (citations
omitted). “In addition, the Commonwealth can prove its case by
circumstantial evidence.” Id. at 657. It is only where “the evidence is so
weak and inconclusive that, as a matter of law, no probability of fact can be
drawn from the combined circumstances,” that a defendant is entitled to relief.
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Appellant contends that there was no evidence that she had a controlled
substance in her possession at the time of the alleged controlled drug buy.
She asserts that only evidence of possession of a controlled substance was
possession by Mr. Palmer and the CI.
The record refutes Appellant’s position. The CI’s statement that
Appellant handed her three Subutex pills in exchange for $80 came into
evidence though the testimony of Detective Hampe. Although such testimony
was arguably inadmissible hearsay, there was no objection to its admission.
In order to sustain a PWID conviction, “the Commonwealth must
establish the defendant knowingly or intentionally possessed a controlled
substance without being properly registered to do so, with the intent to
manufacture, distribute, or deliver it.”3 Commonwealth v. Dix, __A.3d___,
2019 Pa. Super. LEXIS 305, *12-13 (Pa.Super. 2019) (quoting
Commonwealth v. Brown, 48 A.3d 426, 430 (Pa.Super. 2012)); see also
35 P.S. § 780-113(a)(30). The CI’s statement alone, as reported by Detective
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3 PWID is defined as
(30) 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. § 780-113a(30).
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Hampe, if credited by the fact-finder, was sufficient to prove that Appellant
possessed a controlled substance. This claim fails.
Appellant argues next that a new trial was required as the verdict was
against the weight of the evidence. She points to the fact that the jury, in
acquitting her of the delivery of controlled substance charge, rejected the
notion that Appellant possessed and delivered the three pills that the CI
subsequently handed over to police. She argues that “the mere contemplation
of offering a half of a pill under these circumstances which [the CI] refused .
. . is not a crime.” Appellant’s brief at 33. There was no evidence, Appellant
contends, that she removed one-half of one pill from her pocket or took any
step to effectuate an intent to give it to the CI. Id. at 34.
Our standard of review of a weight of the evidence claim is well
established:
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (quoting
Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000)).
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To determine whether a trial court’s decision constituted a palpable
abuse of discretion, an appellate court must
examine the record and assess the weight of the evidence; not
however, as the trial judge, to determine whether the
preponderance of the evidence opposes the verdict, but
rather to determine whether the court below in so finding
plainly exceeded the limits of judicial discretion and
invaded the exclusive domain of the jury.
Id. at 1056 (emphasis in original). Where the record adequately supports the
decision of the trial court, the trial court has acted within the limits of its
judicial discretion.
The trial court concluded that there was “nothing to suggest that the
jury verdict was so contrary to the weight of the evidence that it would shock
one’s sense of justice.” Trial Court Order, 2/8/19, at 7. Even accepting
Appellant’s version of the events, she offered the CI one-half of her legally
prescribed Subutex pill to alleviate the CI’s addiction-related sickness.
Although the CI declined the offer, the jury’s finding that Appellant possessed
a controlled substance with intent to distribute was not contrary to the weight
of the evidence. We find no abuse of discretion on the part of the trial court.
Finally, Appellant contends that her conduct, namely, offering one-half
of a pill to a friend in distress, was de minimis, as that term is defined in the
Crimes Code, 18 Pa.C.S. § 312. She maintains that the offense was “petty,”
and not intended to cause harm to the CI or to society in general, and that
the trial court should have dismissed the prosecution on that basis alone. Cf.
Commonwealth v. Lutes, 793 A.2d 949, 963 (Pa.Super. 2002) (affirming
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refusal to dismiss disorderly conduct citations as de minimis because
appellant’s threats of physical harm caused annoyance and alarm to the
victim). Appellant argues further that, without her honest testimony that she
offered the CI one-half of one pill, there would have been no evidence from
which the jury could have inferred that she possessed a controlled substance
with intent to deliver.
In reviewing a trial court’s refusal to dismiss a prosecution for conduct
that is allegedly de minimis, we evaluate the trial court’s ruling for an abuse
of discretion. Lutes, supra at 963; see also Commonwealth v.
Przybyla, 722 A.2d 183 (Pa.Super. 1998). As set forth in 18 Pa.C.S. §
312(a):
(a) General rule. -The court shall dismiss a prosecution if,
having regard to the nature of the conduct charged to
constitute an offense and the nature of the attendant
circumstances, it finds that the conduct of the defendant:
(1) was within a customary license or tolerance,
neither expressly negatived by the person
whose interest was infringed nor inconsistent
with the purpose of the law defining the offense;
(2) did not actually cause or threaten the harm or
evil sought to be prevented by the law defining
the offense or did so only to an extent too trivial
to warrant the condemnation of conviction; or
(3) presents such other extenuations that it cannot
reasonably be regarded as envisaged by the
General Assembly or other authority in
forbidding the offense.
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18 Pa.C.S. § 312(a). As we reaffirmed in In re M.M., 855 A.2d 112, 114
(Pa.Super. 2004), “[t]he purpose of Section 312 is ‘to remove petty infractions
from the reach of the criminal law.’” (quoting Commonwealth v. Moll, 543
A.2d 1221, 1226 (Pa.Super. 1998)).
We note that Appellant did not seek dismissal of the PWID charge on
this basis below. Thus, the trial court was not given the opportunity to
consider whether § 312(a) warranted dismissal of the PWID conviction herein,
and the claim is waived. See Pa.R.A.P. 302(a). Furthermore, as the
Commonwealth correctly points out, the conduct identified by Appellant as de
minimis was presented to the jury by Appellant and Mr. Palmer. Whether the
jury actually convicted Appellant based on her version of the events is
unknown. The Commonwealth charged Appellant with PWID based on her
possession of three Subutex pills, and the CI’s statement alone was sufficient
to sustain the conviction of that offense. For that reason as well, Appellant
would not be entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/11/2019
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