Commonwealth v. Drummond

775 A.2d 849, 2001 Pa. Super. 122, 2001 Pa. Super. LEXIS 482
CourtSuperior Court of Pennsylvania
DecidedApril 25, 2001
StatusPublished
Cited by82 cases

This text of 775 A.2d 849 (Commonwealth v. Drummond) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Drummond, 775 A.2d 849, 2001 Pa. Super. 122, 2001 Pa. Super. LEXIS 482 (Pa. Ct. App. 2001).

Opinions

JOYCE, J.:

¶ 1 Appellant, David Drummond, appeals from the judgment of sentence entered following his conviction for possession of a controlled substance with the intent to deliver (PWID).1 For the reasons set forth below, we affirm.2 The relevant facts and procedural history of this case are as follows.

¶2 On October 6, 1998, pursuant to a warrant obtained based on information provided by a confidential informant regarding a prior drug sale, the police executed a search warrant at Appellant’s third floor apartment.3 In order to enter the apartment, the police climbed up a fire escape to a second floor door from which they entered and ascended to the third floor. At the time, Appellant’s apartment door was open. Upon entering the apartment, the police observed Appellant sitting at the foot of his bed. The police immediately placed Appellant in custody and proceeded to search the apartment pursuant to the warrant.

¶ 3 The police immediately discovered and seized two small heat-sealed pink Ziploc packets of cocaine and $75 on Appellant’s person, as well as three clear bags of cocaine, a bag containing thirty pink Ziploc bags and $205 in cash in the vicinity of where Appellant had been sitting.4 All of these items were in plain view. Upon being advised of his rights and following his arrest, Appellant stated that he was not a drug pusher, but was just attempting to make some money to return to Jamaica. A March 16-18, 1999 jury trial ended with a mistrial due to the jury’s inability to arrive at a verdict. Following a November 5, 1999 jury trial, Appellant was convicted of the instant offense. On December 22, 1999, the court sentenced Appellant to two (2) to four (4) years’ imprisonment pursuant to the mandatory sentencing requirement contained within 18 Pa.C.S.A. § 6317.5 Appellant obtained new counsel after which this timely appeal followed.

¶ 4 This matter was originally assigned to a panel of this Court for disposition. However, this Court sua sponte referred [852]*852this case for en banc review. This matter therefore is now ripe for disposition.

¶ 5 Appellant has raised the following issues for our review: (1) whether trial counsel was ineffective for failing to object to the admission of hearsay testimony by Detective Philip Roberts regarding the information obtained from the confidential informant; (2) whether the evidence was insufficient to prove PWID; (3) whether the trial court erred by sentencing Appellant pursuant to the mandatory provision contained within 18 Pa.C.S.A. § 6317; and (4) whether trial counsel was ineffective for failing to object to the prosecutor’s closing statement.

¶ 6 Appellant initially argues that trial counsel was ineffective for failing to object to the hearsay testimony of Detective Philip Roberts. With regard to the issue of counsel’s ineffectiveness, we recognize that:

The threshold inquiry is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness is of arguable merit; for counsel cannot be ineffective for failing to assert a meritless claim. Once this threshold is met we apply the reasonable basis test to determine whether counsel’s chosen course was designed to effectuate his client’s interest. If we conclude that the particular course chosen by counsel had some reasonable basis, our inquiry ceases and counsel’s assistance is deemed effective. If we determine that there was no reasonable basis for counsel’s chosen course then the accused must demonstrate that counsel’s ineffectiveness worked to his prejudice. The burden of establishing counsel’s ineffectiveness is on the [defendant] because counsel’s stewardship of the trial is presumptively effective.

Commonwealth v. Wilson, 543 Pa. 429, 440, 672 A.2d 293, 298, appeal denied, 519 U.S. 951, 117 S.Ct. 364, 136 L.Ed.2d 255 (1996) (citation and quotation marks omitted).

¶ 7 Detective Roberts testified to the information contained within the affidavit of probable cause utilized to obtain the search warrant, primarily the confidential informant’s description of the individual who had sold him drugs, the events transpiring on the date of the drug sale, and the informant’s reliability. The confidential informant did not testify at the time of the trial. Therefore, Appellant alleges that this constituted impermissible hearsay testimony. “A ‘hearsay’ statement is an out-of-court statement offered in court to prove the truth of the matter asserted.” Commonwealth v. Collazo, 440 Pa.Super. 13, 654 A.2d 1174, 1177 (1995).

[I]t is well-settled that an out-of-court statement offered to explain a course of conduct is not hearsay ....
This Court has repeatedly upheld the introduction of out-of-court statements for the purpose of showing that based on information contained in the statements, the police followed a certain course of conduct that led to the defendant’s arrest.
The Pennsylvania Supreme Court has cautioned that such course of conduct testimony must bear close scrutiny prior to being admitted into evidence. The Court said:
Nevertheless, it cannot be said that every out-of-court statement having bearing upon subsequent police conduct is to be admitted, for there is great risk that, despite cautionary jury instructions, certain types of statements will be considered by the jury as substantive evidence of guilt. Further, the police conduct rule does not open the door to unbounded admission of testimony, for such would nullify an accused’s right to cross-[853]*853examine and confront the witnesses against him.
Clearly, there is need for a balance to be struck between avoiding the dangers of hearsay testimony and the need for evidence that explains why police pursued a given course of action. This balancing process is governed by the sound discretion of the trial court, and, as with other evidentiary decisions, the trial court’s decision will be upheld on appeal unless there has been an abuse of that discretion.

Id. at 1178 (citations and quotation marks omitted).

¶ 8 Upon carefully reviewing the record in this case, we are not convinced that the evidence adduced at trial was not improperly admitted, in that the evidence, although not expressly introduced to prove the truth of the matter asserted therein, in effect did establish that Appellant did sell the drugs to the confidential informant.6 However, in spite of this finding, it is clear that any error was harmless.

The harmless error doctrine, as adopted in Pennsylvania, reflects the reality that the accused is entitled to a fair trial, not a perfect trial. The proper analysis to be undertaken was thoroughly explained in [Com. v.] Story[, 476 Pa. 391, 383 A.2d 155]:

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Cite This Page — Counsel Stack

Bluebook (online)
775 A.2d 849, 2001 Pa. Super. 122, 2001 Pa. Super. LEXIS 482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-drummond-pasuperct-2001.