Com. v. Ratcliff, T. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
TONY RUFUS RATCLIFF, III :
:
Appellant : No. 181 WDA 2019
Appeal from the Judgment of Sentence Entered December 20, 2018
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001043-2018
BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, P.J.: FILED FEBRUARY 3, 2020
Tony Rufus Ratcliff, III appeals from the judgment of sentence entered
in the Erie County Court of Common Pleas following his conviction for
possession with intent to deliver (“PWID”) heroin, and possession of a
controlled substance. Ratcliff argues the trial court erred when it permitted an
amendment to the criminal information, and challenges the sufficiency of the
evidence supporting his conviction for PWID. We affirm.
In August of 2017, Ratcliff was charged with Count 1 – Delivery of a
controlled substance to inmate (heroin), Count 2 – Possession of Controlled
Substance by inmate (heroin), Count 3 – Unlawful Delivery of Controlled
Substance to inmate (heroin), Count 4 – PWID (Suboxone), and Count 5 –
Possession (Suboxone). The trial court summarized the facts giving rise to
those charges as follows.
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In the early morning hours of August 5, 2017, [Ratcliff] was
arrested and taken to the Erie County Prison (ECP) on unrelated
charges at a different docket. Upon arrival at the ECP, [Ratcliff]’s
person and property were searched and three suboxone strips
were recovered from his wallet. [Ratcliff] was not prescribed
suboxone, and when questioned by the intake nurse why he was
in possession of the strips [Ratcliff] told her he sold them.
Later in the day on August 5, 2017, inmate Ian Welden was in the
day room of Bravo Pod (B Pod) in the ECP when he was
approached by [Ratcliff] and asked if he was looking for anything.
Welden responded "yeah, maybe" and [Ratcliff] said he had some
"H". Welden, an active heroin user, understood this to mean
[Ratcliff] had heroin. Welden and [Ratcliff] arranged for the
transaction to occur later in the evening before lockdown at 10:00
p.m. At the designated time, [Ratcliff] arrived at Welden's cell and
gave him "a match head's worth of powder in plastic." In
exchange, Welden gave [Ratcliff] a bag of coffee and planned to
repay the rest in commissary items the next day. Welden then
snorted the "offwhite or brownish" powder in his cell after
lockdown.
On the morning of August 6, 2017, Officer Christopher Fraser
discovered Welden in his jail cell breathing but unresponsive.
Officer Fraser radioed the code for medical emergency. Officer
Adam Merchant, one of the responding officers and a trained EMT,
assisted in transporting Welden to UPMC Hamot Hospital (Hamot).
At Hamot, Officer Merchant observed the medical staff trying to
figure out what was going on with Welden for approximately two
hours before Narcan was administered. Officer Merchant
confirmed that within minutes of receiving the Narcan, Welden
began to "mumble things and speak to us and come to it a little
bit." Officer Merchant asked Welden what happened and Welden
admitted to snorting something. Officer Merchant asked for a
description of the individual who had provided the substance to
him and Welden stated he "got something from a short, husky,
black man in 21 cell." Upon receiving this information, Officer
Merchant called the jail to advise it was a drug-related incident
and later documented the description provided by Welden in a
written report.
After receiving the information that Welden had suffered a drug
overdose, Captain Mitchell Carman initiated an investigation of B
Pod. He directed officers at the ECP to conduct a search of B Pod
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and the rest of the facility and to begin interviewing inmates. In
the meantime, Captain Carman equipped himself with a body
camera and went to Hamot to interview Welden. According to the
description Welden provided in the recorded interview regarding
the person who provided the substance that caused his overdose,
the individual was a "large, bald, black man who came in a few
days prior – a day or two prior and had been in a traffic stop who
was in the back of the pod somewhere." Welden also provided a
written statement, admitted as Commonwealth Exhibit 6, stating
Friday night before lockdown a large black guy with a bald head
asked him if he wanted any H. With this information, Captain
Carman returned the ECP and cross-referenced the housing
sheets for B Pod to determine which inmates matched the
description. Captain Carman determined [Ratcliff], being housed
in cell B-22, was the only possible match.
Captain Carman directed interviews be conducted with several
inmates from the back of B Pod and that [Ratcliff] and his cellmate
be removed from cell B-22. Captain Carman and Officer Scott
Gorring conducted a "shakedown" of cell B-22 to search for
contraband. Wedged into a bracket welded to the concrete wall on
the upper right-hand side of the top bunk, [Ratcliff]’s bunk,
Captain Carman recovered a wad of toilet paper wrapped around
three separate pieces of plastic each containing a "brown
substance". At trial, Commonwealth Exhibit 7, a video recording
from Captain Carman's body-cam depicting him opening the toilet
paper and finding the plastic bag corners and substance, was
admitted. Forensic analysis revealed the substances contained
heroin, fentanyl, and carfentanil.
After the discovery of the drugs [Ratcliff] was placed in a dry cell.
At approximately 6:30 p.m. on August 6, 2017, Captain Carman
conducted a recorded interview with [Ratcliff]. During this
interview, [Ratcliff] denied possessing any contraband. On August
7, 2017, [Ratcliff] requested to speak with Captain Carman again.
Another recorded interview took place and this time [Ratcliff]
advised Captain Carman another inmate had given him a
controlled substance to hold. [Ratcliff] does not dispute he hid the
wad of toilet paper between his bed frame and the wall in his cell,
B-22. [Ratcliff] completed a witness statement after the recorded
interview but tore it up shortly after filling it out.
Detective Todd Manges of the Erie County District Attorney's
Office conducted a follow-up interview with Welden on November
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21, 2017. During that interview, Welden again described the
individual who gave him the substance that caused his overdose
as a "black, husky, male with a bald head" and stated he believed
his name was Ratcliff. After Welden's statements, Detective
Manges showed Welden a booking photograph of [Ratcliff] and
Welden positively identified him as the perpetrator.
Trial Court Opinion, at 1-4 (internal record citations omitted).
Prior to trial, the Commonwealth filed a motion in limine requesting to
amend the information. The charges were amended at Count 4 to PWID
(heroin) and at Count 5 to Possession (heroin).
Following a three-day trial, a jury convicted Ratcliff of Count 4 – PWID
(heroin) and Count 5 – Possession (heroin).1 Ratcliff was thereafter sentenced
to a period of twenty-four to eighty-four months’ incarceration. He filed a nunc
pro tunc post-sentence motion to reconsider or modify sentence, which the
court denied. This timely appeal followed.
First, Ratcliff contends the trial court erred in granting the
Commonwealth’s motion in limine to amend the criminal information as to
Count 4 to reflect the controlled substance at issue for the PWID charge was
heroin and not suboxone as originally charged. The decision whether to allow
the Commonwealth to amend an information is a matter within the discretion
of the trial court. Only an abuse of discretion will constitute reversible error.
See Commonwealth v. Small, 741 A.2d 666, 681 (Pa. 1999). “An abuse of
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1The jury was hung and a mistrial was declared as to Counts 1, 2, and 3.
Ratcliff filed a motion for judgment of acquittal as to those counts. The court
denied the motion.
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discretion requires proof of more than a mere error in judgment, but rather
evidence that the law was misapplied or overridden, or that the judgment was
manifestly unreasonable or based on bias, ill will, prejudice, or partiality.”
Simmons v. Simmons, 723 A.2d 221, 222-223 (Pa. Super. 1998).
Pennsylvania Rule of Criminal Procedure 564 permits the trial court to
amend an information “when there is a defect in form, the description of the
offense(s), the description of any person or any property, or the date charged,
provided the information as amended does not charge an additional or
different offense.” Pa.R.Crim.P. 564. Moreover, “[u]pon amendment, the
court may grant such postponement of trial or other relief as is necessary in
the interests of justice.” Id. “[T]he purpose of Rule 564 is to ensure that a
defendant is fully apprised of the charges, and to avoid prejudice by
prohibiting the last minute addition of alleged criminal acts of which the
defendant is uninformed.” Commonwealth v. Sinclair, 897 A.2d 1218, 1221
(Pa. Super. 2006) (citation omitted). “[O]ur courts apply the rule with an eye
toward its underlying purposes and with a commitment to do justice rather
than be bound by a literal or narrow reading of the procedural rules.”
Commonwealth v. Grekis, 601 A.2d 1284, 1289 (Pa. Super. 1992).
When presented with a question concerning the propriety of an
amendment, we consider:
[w]hether the crimes specified in the original indictment or
information involve the same basic elements and evolved out of
the same factual situation as the crimes specified in the amended
indictment or information. If so, then the defendant is deemed to
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have been placed on notice regarding his alleged criminal conduct.
If, however, the amended provision alleges a different set of
events, or the elements or defenses to the amended crime are
materially different from the elements or defenses to the crime
originally charged, such that the defendant would be prejudiced
by the change, then the amendment is not permitted.
Sinclair, 897 A.2d at 1221 (citation omitted).
The factors the trial court must consider in determining whether an
amendment is prejudicial are:
(1) whether the amendment changes the factual scenario
supporting the charges; (2) whether the amendment adds new
facts previously unknown to the defendant; (3) whether the entire
factual scenario was developed during a preliminary hearing; (4)
whether the description of the charges changed with the
amendment; (5) whether a change in defense strategy was
necessitated by the amendment; and (6) whether the timing of
the Commonwealth’s request for amendment allowed for ample
notice and preparation.
Id., at 1223 (citation omitted).
Ratcliff argues the amendment prejudiced him because the factual
scenario supporting the charges changed and he did not have time to prepare
a defense to the amended charge. However, Ratcliff was aware from the time
of the original information that he was being charged with multiple counts
related to heroin; specifically, that he was alleged to have sold heroin to a
fellow inmate and that heroin was found in his cell after a search. Further,
although Pa.R.Crim.P. 564 allows for a continuance in order to prepare for the
new information, no such request was made by Ratcliff. See Commonwealth
v. Fowler, 393 A.2d 844, 847 (Pa. Super. 1978) (finding failure to request
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continuance after information amended supports a conclusion that
amendment caused no prejudice).
Under these circumstances, we conclude Ratcliff has not established
prejudice. Ratcliff was clearly aware of the facts underlying the charges in the
amended complaint from the time charges were brought against him. See
Appellant’s Brief, at 12 (“It is true that the drugs subsequently discovered in
the Appellant’s cell were included as part of the defense to count 3”).
Although there are enhanced penalties for a conviction involving heroin
over suboxone, the mere possibility that amendment of an information may
result in a more severe penalty due to the additional charge is not, of itself,
prejudice. Commonwealth v. Picchianti, 600 A.2d 597, 599 (Pa. Super.
1991). Therefore, as we find Ratcliff had notice of the facts surrounding the
amended information and was not prejudiced by the amendment, we find the
trial court did not err in allowing the amendment. Accordingly, Ratcliff is due
no relief on his first issue.
Next, Ratcliff challenges the sufficiency of the evidence in support of his
conviction for Count 4 – PWID (Heroin). Our standard of review is as follows:
The standard we apply in reviewing the sufficiency of evidence is
whether, viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact[-]finder to find every element of the crime
beyond a reasonable doubt. In applying the above test, we may
not weigh the evidence and substitute our judgment for that of
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact-finder unless the
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evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence. Moreover, in applying
the above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the trier
of fact while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part or none
of the evidence.
Commonwealth v. Helsel, 53 A.3d 906, 917-918 (Pa. Super. 2012) (citation
omitted).
In relevant part, the Controlled Substance, Drug, Device and Cosmetic
Act prohibits the following acts:
[T]he 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. § 780.113(a)(30). To sustain a conviction for PWID “all of the facts
and circumstances surrounding the possession are relevant and the elements
of the crime may be established by circumstantial evidence.”
Commonwealth v. Little, 879 A.2d 293, 297 (Pa. Super. 2005) (citation
omitted).
Ratcliff argues that the evidence was insufficient because the
Commonwealth failed to prove he knew the illegal drugs were in his cell or
that he planned to deliver them. “In order to convict a defendant of PWID,
the Commonwealth must prove that the defendant possessed a controlled
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substance and did so with the intent to deliver it.” Commonwealth v.
Sarvey, 199 A.3d 436, 450 (Pa. Super. 2018) (citation and internal quotation
marks omitted). Here, Ratcliff admitted on the record that he had a controlled
substance in his cell. See N.T., Jury Trial Day 3, 11/19/2018, at 31-32.2
Further, the record includes testimony from another inmate that Ratcliff sold
heroin to him in prison, which caused him to overdose. See N.T., Jury Trial
Day 2, 11/16/2018, at 30-36, 39-41. Finally, the record includes testimony
from an intake nurse indicating Ratcliff had other drugs in his possession
(suboxone) upon entry into the prison, and that he specifically indicated he
possessed the drugs in order to sell them. See id., at 124-125. Therefore, the
finder of fact had sufficient evidence to conclude by circumstantial evidence
that Ratcliff possessed heroin and intended to sell it. Based on the totality of
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2
[Commonwealth]: So when he says contraband, you say what
contraband?
[Ratcliff]: Hm-hmm.
[Commonwealth]: You know exactly what contraband he’s talking
about?
[Ratcliff]: I know that I had contraband, yes.
[Commonwealth]: And so when you say what contraband, you
would be misleading Captain Carman?
[Ratcliff]: Yes.
N.T., Jury Trial Day 3, 11/19/2018, at 31-32.
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the evidence established at trial, we find Ratcliff’s challenge to the sufficiency
of the evidence to support his conviction of PWID to be without merit.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2020
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