Commonwealth v. Harley

924 A.2d 1273, 2007 Pa. Super. 148, 2007 Pa. Super. LEXIS 1237
CourtSuperior Court of Pennsylvania
DecidedMay 25, 2007
StatusPublished
Cited by17 cases

This text of 924 A.2d 1273 (Commonwealth v. Harley) 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. Harley, 924 A.2d 1273, 2007 Pa. Super. 148, 2007 Pa. Super. LEXIS 1237 (Pa. Ct. App. 2007).

Opinion

OPINION BY

JOHNSON, J.:

¶ 1 In this case, we consider, inter alia, whether the Commonwealth may properly determine the total weight of a controlled substance found separated into small zi-plock bags by randomly selecting, emptying and weighing less than the total amount of bags to determine the average weight of a single bag and then extrapolating and subtracting this weight from the combined total weight to determine the weight of the controlled substance. Here, the trial court imposed an enhanced sentence in accordance with the mandatory minimum sentencing provisions of 18 Pa. C.S. section 7508 based upon the weight of the controlled substance. The defendant in this case, James Edward Harley, contends that the weighing of only some of the ziplock bags does not account for the variances between the bags and therefore the total weight of the controlled substance was inaccurate. Harley argues that because the total weight was incorrect, the trial court erred in imposing a longer mandatory minimum sentence than is required under the statute. We conclude that the Commonwealth’s method of weighing less than the total amount of bags to find the average weight of an empty ziplock bag did account for the variances between the bags and is therefore legally acceptable. Accordingly, we affirm the judgment of sentence.

¶ 2 Harley appeals from the judgment of sentence imposed following his convictions of Possession of a Controlled Substance and Possession with Intent to Deliver a Controlled Substance. See 35 P.S. §§ 780-113(a)(16), 780-113(a)(30) (respectively). The trial court set forth the relevant underlying facts:

At approximately 2:00 a.m. on August 28, 2005, Officer Cheryl Gelsinger of the Reading Police Department was driving alone in uniform in the City of Reading, Berks County, Pennsylvania, when she noticed a vehicle parked in the 1000 block of Clover Street where parking was prohibited. She stopped her vehicle and walked to the parked vehicle, which was running with its headlights and taillights lit.
Officer Gelsinger called police dispatch to relay the license plate number and then approached the driver’s window. The driver’s window was open and the sole occupant sat unconscious in the driver’s seat. The occupant was the defendant, James Harley. There was a white powdery substance in his left nostril and he was sweating abnormally profusely given the climate at the time.
Officer Gelsinger attempted to awaken [Harley] by yelling to him. After approximately two minutes, the defendant gained consciousness but seemed disoriented. Officer Gelsinger asked whether he was all right [sic], what he was doing there, and to see his driver’s license. Officer Wendell Buck, Jr. arrived as backup while Officer Gelsinger was talking with the defendant. The defendant said he was going to visit his aunt but instead parked and fell asleep. Officer Gelsinger asked the defendant to turn off the engine and exit the vehicle.
Officer Gelsinger decided to arrest [Harley] based on information unrelated to this case. During a search of [Harley] incident to the arrest, she located $480 in United States currency, a pack of cigarettes, a lighter, and a clear sandwich bag containing eighty-seven small blue zip locked bags which each contained crack cocaine. The cocaine was [1276]*1276sent to the Pennsylvania State Police Crime Lab in Bethlehem to confirm that it was cocaine and to determine the weight. The small zip lock bags of crack cocaine were of the type normally sold for ten dollars each in Reading. A cellular telephone had been on [Harley’s] lap when Officer Gelsinger first approached. No empty packaging material or paraphernalia for using drugs was located in the defendant’s possession.

Trial Court Opinion (T.C.O.), 7/24/06, at 2-3.

¶ 3 On August 29, 2005, Officer Gelsinger filed a criminal complaint charging Harley with one count each of possession of a controlled substance and possession with intent to deliver a controlled substance. The trial court held a preliminary hearing on September 2, 2005, wherein both charges were bound over for trial. On October 24, 2005, the Commonwealth filed notice of its intention to invoke the mandatory minimum sentencing provisions of 18 Pa.C.S. section 7508. The trial court held a jury trial on February 1 and 2, 2006. At trial, Larissa Sorochika, a forensic scientist with the Pennsylvania State Police Regional Laboratory testified that the substance found in the 87 packets was crack cocaine and that the aggregate weight was 10.2 grams. Pasquale Leporace, a criminal investigator with the Reading Police Department, testified that in his expert opinion, Harley possessed all 87 packets with the intent to deliver them because of the packaging, the number of packets and weight of the crack cocaine, economic considerations, common practices in Reading drug trade, the lack of used packaging and paraphernalia, a cell phone, and the $480 found on Harley. A jury found Harley guilty on both counts.

¶ 4 The trial court, the Honorable Jeffrey K. Sprecher, held a sentencing hearing on February 28, 2006, to determine the applicability of 18 Pa.C.S. section 7508. Section 7508 subjects individuals convicted of drug offenses under 35 P.S. section 780-113(a)(30) to longer terms of incarceration if they had been previously convicted under the same section. See 18 Pa.C.S. § 7508(a)(2). The sentences for the second conviction depend upon the weight of controlled substance in the second offense — if a defendant had intended to distribute more than ten grams but less than one hundred grams, he would be given a longer sentence than if he intended to distribute less than ten grams. Here, Harley had been convicted under 35 P.S. section 780-113(a)(30) on July 14, 1998. At sentencing, Harley, seeking a lesser sentence, argued that he did not intend to deliver over ten grams of crack cocaine because he planned to use between ten and twenty packets for personal consumption. The trial court found that Harley intended to deliver all 10.2 grams and accordingly sentenced him to five to ten years’ imprisonment under 18 Pa.C.S. section 7508(a)(2)(ii). Harley filed a post-sentence motion which the trial court denied on April 25, 2006. Harley filed a notice of appeal and the trial court ordered him to file a concise statement of matters complained of on appeal. Harley filed a statement raising the issues of the trial court’s finding that he intended to distribute all 10.2 grams of crack cocaine and the constitutionality of 18 Pa.C.S. section 7508. The trial court, in its Rule 1925(a) Opinion, found merit in Harley’s claims as to his intent to consume some of the 10.2 grams of crack cocaine and invites this Court to reverse its initial findings.

¶ 5 On appeal, Harley raises the following questions for our review:

1. DID THE COMMONWEALTH FAIL TO ESTABLISH BY A PREPONDERANCE OF THE EVI-’ DENCE THAT ■ APPELLANT POSSESSED AT . LEAST 10 [1277]*1277GRAMS OF COCAINE WITH THE INTENT TO DELIVER PURSUANT TO 18 PA.C.S.A. § 7508(A)(2)(h) WHEN APPELLANT INTENDED TO USE 20 OF THE 87 BAGGIES (I.E. 2.34 GRAMS) OF COCAINE FOR PERSONAL USE, REDUCING THE TOTAL AMOUNT HE INTENDED TO SELL TO 7.86 GRAMS, AND/OR WHEN TESTIMONY AT TRIAL INDICATED A POSSIBLE DISCREPANCY IN WEIGHT OF UP TO 1.74 GRAMS REDUCING THE TOTAL AMOUNT OF THE SUBSTANCE HE POSSESSED TO 8.46 GRAMS, AND WHEN THE TRIAL COURT AGREED WITH APPELLANT THAT THE COMMONWEALTH FAILED TO MEET THEIR BURDEN OF PROOF FOR SENTENCING PURPOSES?
2.

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Cite This Page — Counsel Stack

Bluebook (online)
924 A.2d 1273, 2007 Pa. Super. 148, 2007 Pa. Super. LEXIS 1237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-harley-pasuperct-2007.