Com. v. Crowley, M. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
MICHELLE CROWLEY : No. 1728 WDA 2017
Appeal from the Order dated November 13, 2017
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-CR-0000874-2016
BEFORE: OLSON, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 24, 2018
The Commonwealth appeals from the order entered November 13,
2017, which granted the motion in limine filed by Michelle Crowley to prevent
testimony from a police officer that items seized in this case contain
marijuana.1 The trial court determined that, absent chemical analysis of the
items, the officer’s testimony was impermissible. However, it is well settled
that chemical analysis of suspected narcotics is not required, provided there
is alternative direct or circumstantial evidence sufficient to identify the
narcotics. Accordingly, we reverse.
In March 2016, Officer Michael Bordt was dispatched to the Mellinger
residence. See Criminal Complaint, 04/14/2016, Affidavit of Probable Cause.
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* Retired Senior Judge assigned to the Superior Court.
1 The Commonwealth certifies that the order granting the motion in limine
substantially handicaps the prosecution of this case. See Pa.R.A.P. 311(d).
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The Mellingers requested police involvement when they discovered that the
child of Rebecca Mellinger’s niece, Michelle Crowley, had a marijuana joint in
her mouth. Id. Both Crowley and her child were staying at the Mellinger
residence. Id. When Officer Bordt arrived, the Mellingers provided to him
what appeared to be a small bag of marijuana, a marijuana joint, and several
items of drug paraphernalia. Id. Thereafter, the Commonwealth filed an
information charging Crowley with possession of a small amount of marijuana,
possession of drug paraphernalia, and endangering the welfare of a child.2
See Information, 05/24/2016.
Delays prevented the timely commencement of trial proceedings. For
example, Crowley failed to appear for several pretrial conferences, resulting
in the issuance of bench warrants. See, e.g., Bench Warrants issued
08/08/2016, 07/05/2017, and 09/14/2017.
In November 2017, just prior to trial, Crowley presented an oral motion
in limine, seeking to prevent testimony from Officer Bordt that items seized
from the Mellinger residence contain marijuana. Notes of Testimony (N.T.),
11/13/2017, at 2. According to Crowley, as the items were never sent to a
lab for chemical testing, no expert testimony could establish the presence of
marijuana. Id. Following an offer of proof from the Commonwealth, outlining
Officer Bordt’s training and experience, as well as argument from the parties,
the court granted Crowley’s motion. Id. at 6.
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2 See 35 P.S. §§ 780-113(a)(31), (32); 18 Pa.C.S. § 4304(a)(1), respectively.
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The Commonwealth timely appealed and filed a court-ordered Pa.R.A.P.
1925(b) statement. The trial court issued a responsive opinion, in which it
acknowledged that the identity of narcotic substances may be established by
circumstantial evidence and requested that this matter be remanded for
further proceedings. See Trial Court Opinion, filed February 20, 2018, at 2
(citing cases).
The Commonwealth raises the following issue on appeal:
Whether the trial court erred in granting [Crowley’s] motion in
limine barring the Commonwealth from presenting testimony that
the seized substance is, in fact, marijuana[.]
Commonwealth’s Br. at 1 (italics added).
We review a trial court’s decision to grant a motion in limine for an abuse
of discretion. Commonwealth v. Belani, 101 A.3d 1156, 1160 (Pa.Super.
2014).
A trial court has broad discretion to determine whether evidence
is admissible, and [its] ruling regarding the admission of evidence
will not be disturbed on appeal unless that ruling reflects manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such
lack of support to be clearly erroneous.
Id. (internal quotation marks and citation omitted).
The Commonwealth contends that the trial court erred in granting
Crowley’s motion in limine to preclude Officer Bordt from testifying that the
items seized are or contain marijuana. Commonwealth’s Br. at 5. According
to the Commonwealth, the identity of suspected narcotics may be established
by direct or circumstantial evidence and need not be confirmed by chemical
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analysis. Id. (citing Commonwealth v. Williams, 428 A.2d 165 (Pa.Super.
1981)). Based on Officer Bordt’s training and experience, the Commonwealth
asserts that his testimony is admissible and its credibility left to a jury. Id. at
5-6.
In response, Crowley concedes that circumstantial evidence may
“sometimes be used to identify narcotics” but asserts that “[s]ometimes
chemical analysis is required.” Crowley’s Br. at 4 (unpaginated) (citing in
support Commonwealth v. Carpio-Santiago, 14 A.3d 903 (Pa.Super.
2011)). Though it is not entirely clear from Crowley’s argument, she seems
to suggest that Officer Bordt’s experience and training were insufficient to
inform his direct, visual and olfactory observations. See Crowley’s Br. at 4-
6. Rather, Crowley seems to suggest, additional testimony from a treating
physician, hospital records, or identification testimony from a pharmacologist
was required. See id. at 4 (citing in support Commonwealth v. Lambert,
313 A.2d 300 (Pa.Super. 1973)); see also N.T. at 3 (suggesting that Officer
Bordt was required to have a “background in chemistry”). Absent this
additional evidence, according to Crowley, chemical analysis should be
required. See Crowley’s Br. at 4.
Initially, we must clarify that the testimony proffered by the
Commonwealth constitutes direct—not circumstantial—evidence. See
Commonwealth’s Br. at 5-6 (suggesting that Officer Bordt’s testimony is
“mainly circumstantial”); Crowley’s Br. at 4 (unpaginated) (attempting to
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distinguish when circumstantial evidence is “alone” sufficient and when not);
Trial Ct. Op. at 2 (addressing adequacy of circumstantial evidence).
The basic distinction between direct and circumstantial evidence
is that in the former instance the witnesses testify directly of their
own knowledge as to the main facts to be proved, while in the
latter case proof is given of facts and circumstances from which
the jury may infer other connected facts which reasonably follow,
according to the common experience of mankind.
Commonwealth v. Broughton, 390 A.2d 1282, 1284 (Pa.Super. 1978)
(quoting 29 Am.Jur.2d, Evidence § 264 at 312). Here, Officer Bordt was
prepared to testify as to his direct observations as to the nature of the items
seized, as informed by his training and experience. N.T. at 5. While the
persuasiveness of this testimony may be less compelling than chemical
analysis, it nonetheless constitutes direct evidence. Broughton, 390 A.2d at
1284.
It is well settled in Pennsylvania that “[t]he existence of narcotic drugs
does not have to be proved by chemical analysis and may be proved either by
direct or circumstantial evidence.” Williams, 428 A.2d at 167. Indeed,
merely circumstantial evidence is adequate. See, e.g., Commonwealth v.
Minott, 577 A.2d 928, 932 (Pa.Super. 1990) (noting well-established policy
that circumstantial evidence is sufficient and applying to extrapolation method
employed to ascertain quantity of narcotics seized); Commonwealth v.
Stasiak, 451 A.2d 520, 525 (Pa.Super. 1982) (rejecting need for chemical
analysis of suspected narcotics where circumstantial evidence, consisting of
sealed and labelled bottles recently stolen from pharmacy, was sufficient);
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Commonwealth v. Leskovic, 307 A.2d 357, 358 (Pa.Super. 1973) (rejecting
need for chemical analysis of capsules allegedly provided victim where
description matched that of known barbiturate and urine sample of victim
revealed quantity of barbiturate in bloodstream).
Thus, Crowley’s suggestion that the Commonwealth was required to
secure chemical analysis is not persuasive. Principally, she relies on Carpio-
Santiago, in which this Court held, based on the facts present, that
circumstantial evidence was insufficient to establish the quantity of narcotics
required to trigger a mandatory sentence. Carpio-Santiago, 14 A.3d at 906
(thereafter distinguishing Stasiak, et al.). Briefly, in that case, police seized
suspected narcotics from several locations at the defendant’s residence. Id.
at 904. Though chemical analysis confirmed the presence of narcotics in most
of the items seized, it also found no evidence of narcotics in two plastic bags
recovered from the defendant’s house and shed. Id. Nevertheless, the
sentencing court included the weight of this evidence in calculating the
aggregate weight of narcotics. Id. at 906. On appeal, we rejected the
sentencing court’s reliance on circumstantial evidence to justify its calculation:
The instant facts are readily distinguishable from
[Commonwealth v.] Lawson, [671 A.2d 1161 (Pa.Super.
1996),] Stasiak, and Leskovic. In none of these cases did
scientific/chemical testing reveal an absence of the controlled
substance. This factual difference with the instant case is critical.
Indeed, though circumstantial evidence alone can sometimes be
used to identify narcotics, like in Stasiak and Leskovic, the
Commonwealth fails to point to any case in which circumstantial
evidence is sufficient in the face of a negative chemical test.
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Id. at 907 (emphasis in original). Based on the critical factual distinction
recognized, a distinction irrelevant here, Crowley’s reliance on Carpio-
Santiago is misplaced.
Similarly, Crowley’s citation to Lambert is unhelpful. In that case, the
defendant was charged with certain drug-related crimes, as well as corruption
of minors, after it was alleged that he supplied pills to a child. Lambert, 313
A.2d at 300. The Commonwealth failed to prove that the pills were “dangerous
drugs.” Id. Nevertheless, the trial court denied the defendant’s demurrer to
the corruption charge. Id. On appeal, we reversed the judgment of sentence.
Id. at 301. In so doing, we rejected the trial court’s belief that the absence
of evidence tending to prove that the pills were dangerous drugs was
irrelevant. Id. We stated as follows:
By specifically charging the manner by which appellant was
alleged to have corrupted the morals of these minors, the
Commonwealth was required to prove that appellant did furnish
them with dangerous drugs. The Commonwealth could have done
so by direct or circumstantial evidence through analysis of the
pills, testimony of the treating physician, hospital reports, or
identification of the pills by a pharmacologist. Having failed to do
so, the Commonwealth did not prove the offense as charged in
the indictment, and appellant’s motion in arrest of judgment
should have been granted.
Id. Thus in Lambert, it was the absence of any evidence—direct or
circumstantial—that warranted reversal. Moreover, placed in its proper
context, our suggested list of possible evidence sufficient to establish that the
defendant had supplied narcotics to the child was illustrative and not
exhaustive.
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Here, in responding to Crowley’s motion, the Commonwealth made the
following offer of proof:
[THE COMMONWEALTH]: Your Honor, the Commonwealth plans
to present testimony from Officer Bordt that he had smelled the
substance and he has extensive training and knowledge as to what
the substance is and that he had found it to be marijuana through
his training and experience and the smelling of the substance.
...
[H]is training and experience comes, number one, through the
police academy, and number two, through hundreds of different
cases and instances where he’s had to deal with it in the field.
He’s been an officer for five years and he’s dealt with marijuana
on countless occasions. The police academy goes through
extensive training on this.
N.T. at 5.
This proffered testimony constitutes direct, admissible evidence that the
items seized from the Mellinger’s residence are or contain marijuana. In light
of our well-established precedent, the trial court’s decision to grant Crowley’s
motion in limine, precluding this testimony, was clearly erroneous. See
Williams, 428 A.2d at 167. Accordingly, the court abused its discretion, and
we reverse. Belani, 101 A.3d at 1160.
Order reversed; case remanded; jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2018
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