Commonwealth v. Glenn

675 A.2d 343, 450 Pa. Super. 130, 1996 Pa. Super. LEXIS 1191
CourtSuperior Court of Pennsylvania
DecidedApril 25, 1996
StatusPublished
Cited by3 cases

This text of 675 A.2d 343 (Commonwealth v. Glenn) 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. Glenn, 675 A.2d 343, 450 Pa. Super. 130, 1996 Pa. Super. LEXIS 1191 (Pa. Ct. App. 1996).

Opinions

DEL SOLE, Judge:

Following a bench trial, William Glenn was convicted of possession of 2.34 grams of cocaine, possession with intent to deliver cocaine, and carrying a firearm without a license in a vehicle. A motion for new trial and/or for arrest of judgment was denied. Appellant was sentenced to a term of imprisonment of not less than 3 years nor more than 6 years pursuant to the mandatory minimum sentencing provisions of 18 Pa.C.S.A 7508(a)(3)(i).1 Appellant timely filed the instant appeal.

[345]*345The trial court summarized the facts as follows:

Basically, Philadelphia Police Officer O’Connor testified that on January 3,1993, at 1:10 a.m., he stopped William Glenn for a speeding violation at 48th and Sansom. (N.T. 5/6/94, p. 21). As Officer O’Connor approached the vehicle, he observed Glenn pulling his hand from his pocket. The officer then observed a silver object in Glenn’s hand. The officer, with the aid of a flashlight identified the silver object as a gun. (N.T. 5/6/94, p, 22). O’Connor immediately placed the defendant under arrest. In the search incident to the defendant’s arrest, O’Connor found a brown paper bag which contained a Newport cigarette pack. Inside the cigarette pack was 35 vials of cocaine all sealed with pink caps. (N.T. 5/6/94, p. 22).
The Commonwealth offered testimony from Officer Brennan of the Philadelphia Police Department, Narcotics Unit. Officer Brennan testified that the 35 vials were all “heavy, five-dollar vials.” Furthermore, the vials were packaged together, without the presence of smoking paraphernalia, and the defendant was armed and in possession of currency consistent with recent sales.
Taking all these factors into consideration, Officer Brennan opined that the narcotics were possessed with intent to deliver, and not possessed for personal use.
The Court, acting as the trier of fact, found Officer Brennan to be a credible witness, and subsequently determined that the defendant possessed all 2.34 grams of cocaine with the intent to distribute. (N.T. 5/6/94, p. 36; p. 40).

Trial ct. op. filed 6-6-95 at 2-3.

Appellant initially argues that the trial court erred by curtailing confrontation and cross-examination of a Commonwealth expert witness. It is well settled that the scope and the limits of cross-examination are within the trial court’s discretion, and the trial court’s ruling with regard to the limits of cross-examination will not be reversed absent a clear abuse of that discretion or an error of law. Commonwealth v. Birch, 532 Pa. 563, 616 A.2d 977 (1992).

Officer Brennan of the Philadelphia Police Department was qualified as an expert for the Commonwealth in the area of narcotics use, distribution, packaging and sales. Officer Brennan opined that because Appellant had in his possession 35 vials of heavy, five-dollar vials, packaged together, without the usual paraphernalia of crack smokers, with a gun and $114.00 in small bills, Appellant possessed the drugs with the intent to deliver.

To challenge the Commonwealth’s expert opinion, the defense strategy was to present the testimony of other drug experts whose opinions contradict the conclusions of Officer Brennan. The defense obtained the prior sworn testimony from other criminal proceedings of Philadelphia Police Officers Mor-rone and King who have been qualified as drug experts. The defense claims that Officer Morrone testified previously that the demarcation line between simple possession and possession with intent to deliver was about 35 one hundred milligram vials, and that a heavy user could use 30 fifty-five milligram vials in about eight hours. He also contends that Officer King testified in other proceedings that a heavy user could easily use 25 vials (of unspecified weight) in a day or two.

Appellant argues that the proposed presentation of the Morrone/King expert testimony does not present a hearsay concern because the testimony was not presented for the substantive use of proving the matter asserted. The testimony was only presented for use as a confrontation device to challenge the opinion of Officer Brennan. Appellant further contends the fact that he presented his own defense drug expert, Michael Per-rone, does not vitiate the harm caused by the trial court’s refusal to allow him to present the Morrone/King transcripts because the Commonwealth vigorously cross-examined the defense drug expert as a “hired gun”. Appellant posits that it was crucial for the defense to confront Officer Brennan with the expert testimony of Officers Morrone and [346]*346King since they are fellow police officers of Officer Brennan and would not have a bias towards the defense. Appellant also claims that he merely wanted to confront Officer Brennan with an adverse expert witness with apparent inconsistent standards used by other acknowledged experts.

Appellant acknowledges that no precedent exist to bolster this novel contention. Nevertheless, he argues that the proposed presentation of prior sworn testimony of expert witnesses from different proceedings for cross-examination should be analogized to the cross-examination of expert witnesses with learned treatises. It is undisputed that the prior recorded testimony of Officers Mor-rone and King in other cases would not be considered a learned treatise. But, Appellant posits that the same policies underlying the use of learned treatises in cross-examining expert witnesses applies to the circumstances in the case before us. In Commonwealth v. Jackson, 401 Pa.Super. 258, 585 A.2d 36 (1991), we stated:

Under Pennsylvania law, and in common usage as well, treatises are systematic expositions in writing including methodical discussion of facts and principles. Learned treatises are highly reliable because they are written for professionals, they are subject to scrutiny and testing by experts in the field, and the writers are unlikely to be partial with regard to any specific litigation. See, e.g., Packel & Pou-lin, Pa. Evidence § 803.18 (1987); Webster’s New College Dictionary (1980 Ed.).

Id. at 265, 585 at 39.

Appellant cites Majdic v. Cincinnati Machine Co., 370 Pa.Super. 611, 537 A.2d 334 (1988), wherein this court commented:

The law in this Commonwealth is well settled that an expert witness may be cross-examined on the contents of a publication upon which he or she has relied in forming an opinion, and also with respect to any other publication which the expert acknowledges to be a standard work in the field. In such cases, the publication or literature is not admitted for the truth of the matter asserted, but only to challenge the credibility of the witnesses’ opinion and the weight to be accorded thereto. Learned writings which are offered to prove the truth of the matters therein are hearsay and may not properly be admitted into evidence for consideration by the jury. (Citations omitted).

Id. at 621, 537 at 339.

Appellant’s argument is unpersuasive.

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Bluebook (online)
675 A.2d 343, 450 Pa. Super. 130, 1996 Pa. Super. LEXIS 1191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-glenn-pasuperct-1996.