Commonwealth v. Higginbottom

678 A.2d 408, 451 Pa. Super. 81, 1996 Pa. Super. LEXIS 1953
CourtSuperior Court of Pennsylvania
DecidedJune 12, 1996
StatusPublished
Cited by4 cases

This text of 678 A.2d 408 (Commonwealth v. Higginbottom) 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. Higginbottom, 678 A.2d 408, 451 Pa. Super. 81, 1996 Pa. Super. LEXIS 1953 (Pa. Ct. App. 1996).

Opinion

CAVANAUGH, Judge:

William Higginbottom was tried by jury and was found guilty of possession of a controlled substance with intent to deliver and criminal conspiracy.1 He was sentenced to serve a term of imprisonment for not less than eighteen (18) months nor more than thirty-six (36) months, to be followed by a three (3) year period of probation, and to pay a fine of $5,000. Thereafter, pursuant to a motion for post-sentence relief, Higginbot-tom’s sentence was modified in order to make him eligible to participate in a boot camp program. On direct appeal from the judgment of sentence, Higginbottom asserts that: (1) his trial should have been barred by principles of double jeopardy because he had been subjected to a prior civil forfeiture action arising out of the same drug transaction; (2) the trial court erred by permitting the Commonwealth to present improper expert testimony during rebuttal; (3) his trial counsel was ineffective for failing to call appellant as a rebuttal witness; and (4) the trial court erred by limiting defense arguments during closing argument. After careful review, we affirm the judgment of sentence.

The evidence which was presented at appellant’s trial has been summarized by the trial court in the following manner:

The record shows that on April 29,1994, Police Officers Frank Green and John Keen were in plainclothes. At approximately 6:30 p.m., they established a surveillance post in an unmarked 1975 blue Buick in the 2500 block of Trenton Avenue, Philadelphia. Each officer had a set of binoculars. Officer Green was using his binoculars, and Officer Keen was slouched down trying to hide from view.
Officer Green testified that he observed three white males standing in front of a pizza shop on the corner of Trenton Avenue and Hazzard Street. Officer Green stated that at the time he observed the males, he was approximately seventy-five feet from them and that he had an unobstructed view across Trenton Avenue to their position.
Officer Green saw an unidentified white male approach co-defendant Richard Hamilton, engage him in a short conversation, and hand him what Officer Green believed to be U.S. currency. Hamilton put the money in his left front pocket and pointed to the defendant, William Higginbottom. The white male then approached defendant Higginbottom, who reached inside his shorts in the groin area and removed a brown paper bag. Higginbottom took a number of small bright yellow packets from the brown bag and handed them to the white male who then walked away from the scene.
Approximately five minutes later, a Pontiac Firebird stopped in the middle of the street in front of the pizza shop. Both defendants stepped off the sidewalk into the street and approached the driver’s window of the Firebird. Defendant Hamilton accepted what Officer Green believed to be U.S. currency from the driver of the vehicle, and defendant Higginbottom withdrew the brown paper bag from his pants and handed the driver a bright yellow packet from the bag.
Officer Green informed Officer Keen of what was happening, and Officer Keen relayed the information by radio to Sergeant William Britt, who was also in plainclothes, [410]*410in an unmarked vehicle which was parked around the corner from the pizza shop.
Sergeant Britt radioed for uniformed back-up units to come to his location and when they arrived advised them and Officer Keen to move to the pizza shop.
Officer Keen drove his vehicle to the corner of Trenton Avenue and Hazzard Street. The only persons standing on the corner at that time were defendants Hig-ginbottom and Hamilton. When Officer Green left the vehicle being driven by Officer Keen, defendant Hamilton ran north on Trenton Avenue. Officer Keen pursued him in the vehicle and stopped him. Defendant Higginbottom was placed under arrest by Officer Green and Sergeant Britt.
Following Officer Green’s directions, Sergeant Britt retrieved a brown paper bag (Exhibit C-2) from the defendant’s pants. Officer Green identified C-2 as the same bag the defendant had hidden in his pants. The bag contained forty yellow tinted packets which held a total of 5.44 grams of a cocaine-based substance. C-2, the bag, had a list of numbers with additions or subtractions, and the word “Birdie” was marked on it in blue ink. Defendant Higginbottom also had $252.00 in cash on his person.
William Higginbottom denied that he had engaged in the drug transactions as described by Officer Green. He testified that he had purchased forty nickel bags, i.e. bags which would sell for $5.00, for $160.00 earlier in the day. He claimed that he had received a discount for purchasing in quantity. Defendant Higginbot-tom testified that he initially went to the corner of 4th and Berks Streets, at which location he had purchased drugs in January of 1994. The dealer he had patronized in January was not there so he went to Fourth Street and Cecil B. Moore Avenue to purchase the drugs. He stated that he purchased the drugs for his personal use, not for resale.
Defendant Higginbottom testified that on the day in question, he had borrowed his cousin’s car, drove to Fourth Street and Cecil B. Moore Avenue and purchased the forty bags. He returned the car to his cousin, who lived at Trenton and Hazzard Streets next door to the pizza shop, and was talking to Wayne Malcolm and Rich- ' ard Hamilton, the co-defendant, when the police arrived in several ears and arrested all three of them. Wayne Malcolm was not charged and was subsequently released. Defendant Higginbottom also testified that the police did not find the brown bag until they strip-searched him at the police station.
Wayne C. Malcolm, the individual who was arrested at the same time as defendants Higginbottom and Hamilton testified that he was standing on the corner talking with the co-defendants when the police arrested them for no reason. He testified that the police recovered the brown paper bag from defendant Higginbottom when they strip-searched him at the police station.
Sergeant Lisa King was qualified as an expert in the area of use, abuse and distribution of cocaine. She was permitted to testify as a rebuttal witness notwithstanding the objection of counsel.
Sergeant King was asked to examine the brown bag with the writing, the packets containing cocaine and the seizure analysis. She testified that in her opinion each packet would have a street value of $10.00 and the total value of the 40 packets would be $400.00.
Sergeant King was asked, based on the evidence in the case, if she had an opinion as to whether the drugs which were found on defendant Higginbottom were for personal use or for sale. Sergeant King stated that it was her opinion that the drugs were held for sale and not personal use. She based her opinion on the street value of the drugs which she stated was $400.00, the quantity and packaging of the drugs and the fact that the brown bag had writing on it which was consistent with a person keeping a tally of sales made.

Trial Court Opinion at 2-6.

On May 12, 1994, the Commonwealth filed a petition seeking the forfeiture of the $252.00 in United States currency that was seized from appellant at the time of his ar[411]*411rest.

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Bluebook (online)
678 A.2d 408, 451 Pa. Super. 81, 1996 Pa. Super. LEXIS 1953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-higginbottom-pasuperct-1996.