Commonwealth v. Winters

362 A.2d 297, 239 Pa. Super. 412, 1976 Pa. Super. LEXIS 2252

• Court: Superior Court of Pennsylvania
• Decided: March 29, 1976
• Docket: Appeal, No. 466
• Status: Published

Opinions

Opinion by

Hoffman, J.,

Appellant, convicted of unlawful delivery of a ■ controlled substance,¹ raises two contentions: (1) that the evidence was insufficient to sustain the jury’s finding of guilt; and (2) that the trial court relied on facts de hors the record in imposing sentence.

On August 1, 1974, police conducted a drug raid in the “Ropes” area of Marion Township, Beaver County. Appellant was searched and released at that time. Three of appellant’s associates, however, were arrested and eventually indicted. Based on statements by the three accomplices,² appellant was arrested on August 26, 1974, and was charged with the unlawful delivery of a controlled substance to Robert Johnston, Kevin Roberts, and Clayton Schlereth. After two days of testimony, on December 11, 1974, a jury found appellant guilty as charged. After the court en banc denied appellant’s post-trial motions, the trial court sentenced appellant to a term of imprisonment of eighteen months to five years. This appeal followed.

The Commonwealth presented five witnesses — two members of the county sheriff’s office who acted as undercover agents and the three accomplices. Appellant’s argument is based, in part, on inconsistencies in the testimony of the witnesses.

George Yaccich, a Deputy Sheriff for Beaver County, stated that on August 1, 1974, he and two other deputies were involved in a drug investigation of the “Ropes” area, where young people congregated. Shortly after the three deputies arrived, they were approached by an unidentified juvenile who offered to sell them some L.S.D. Deputy Cogan accompanied the youth to a van parked nearby and purchased three “lids”³ of the drug. Kevin Roberts then approached the deputies with an offer to sell them marijuana. They agreed to purchase $40.00 worth of marijuana. Roberts and Johnston drove off in an unsuccessful effort to secure the marijuana.

The deputies were joined by Clayton Schlereth and appellant. When Roberts and Johnston returned without any marijuana, appellant said that he knew where to get some. Appellant, Schlereth, Roberts, and Johnston drove off again in Johnston’s van. About two hours later, the four young men came back to the “Ropes” area. According to Yaccich, Deputy Cogan received two ounces of marijuana from either Johnston or Roberts.

Thereafter, the deputies arrested the four young men. A search of Johnston’s van uncovered two additional “bags” of marijuana. After the search, Roberts, Schlereth, and Johnston were formally arrested; appellant, however, was released. Some time after the initial arrests, all three young men implicated the appellant; Yaccich, therefore, swore out a criminal complaint charging appellant with unlawful delivery and arrested him on August 26, 1974.

Johnston testified that on August 1, he, Schlereth, and a third friend not involved in the case, rode to the “Ropes” area to go swimming. He gave an account of the incident different from that presented by the deputy:

“Q. Did you have occasion to talk with Officer Yaccich or the other sheriff deputies?

“A. No, sir.

“Q. Did you come in contact with them at all?

“A. Only Officer Cogan. He came over to the van and said hi and that was it.

“Q. Who was at the van at that time?

“A. Me and Kevin Roberts.

“Q. Did you have occasion to see this Defendant John Winters on that day?

“A. It was about 3:30, 4:00 after he had gotten off work from Flame Harding.

“Q. Where did you see him?

“A. At the Ropes.

“Q. At your van?

“A. At different occasions, yes. See, he was on foot and I wouldn’t get out of the van. But he did come out of my van and then he had gone back over to where Mr. Yaccich and the other police were.

“Q. Well, did you have occasion to drive Winters anywhere that day?

“A. Yes, sir. I drove him down to Bridgewater ....

“Q. Where did you take Winters?

“A. Well, we went down Bridgewater and we drove up to Brady’s Run Park and then we went back down into Bridgewater and we drove around for a while and he stopped off — he wanted to stop at a trailer and we stopped there.

“Q. Do you know who owned the trailer?

“A. No, I don’t ....

“Q. Did he leave the van — your van?

“A. Yes, he did.

“Q. Did he have anything — was he carrying anything?

“A. When-he left? No ....

“Q. He left the trailer?

“A. Yes.

“Q. Where did he go?

“A. He come back into my van.

“Q. Was he carrying anything when he came into the van?

“A. Yes, sir. A paper bag.

“Q. What kind of paper bag?

“A. Like a shopping bag ....

“Q. Did you know what was in the bag?

“A. No, I did not.

“Q. Did he bring the bag into the trailer — I mean into your van?

“A. Yes, sir.

“Q. Did you ask him what was in it?

“A. No, sir ....

“Q. What occurred when you went back to the Ropes?

“A. Well, we went back to the Ropes. I went over — first thing I did was got out of the van. It’s the first time I’d been out of the van. Then Kevin Roberts got his money back off the officer, Officer Cogan and then John Winters gave Officer Cogan two ounces or — well, he gave him the grass. I don’t know the exact amount.” Thus, Johnston attempted to deny all knowledge of the drug transaction and to implicate appellant alone.

Schlereth also implicated appellant as the supplier of the marijuana:

“Q. Did anyone leave the van when you stopped at this trailer?

“Q. Who?

“A. John. John Winters.

“Q. Did anyone else leave the van?

“A. No.

“A. He went into the trailer.

“Q. Was he carrying anything when he went into the trailer?

“Q. Your answer was no?

“A. Correct ....

“Q. When he emerged from the trailer was he carrying anything?

“A. I couldn’t say. I didn’t see ....

“Q. Where did you go from there ....

“A. We went back to the Ropes from there, I’m pretty sure. My memory on exact details is a little hazy because I was very quite drunk at the time ....

“Q. Do you recall any of the events that occurred after you went back to the Ropes?

“A. Yes, I do.

“Q. Tell us what occurred.

“A. When we went back to the Ropes I got out of the van and was looking at the swimmers and just moseying about and I overheard a few conversations, this and that and the other thing and I saw John Winters hand over two bags of marijuana to Patrick Cogan, Officer Cogan.”

Deputy Cogan, however, supported Deputy Yaccich’s version of the incident. He testified concerning the purchase of L.S.D. from Roberts and Johnston, their attempt at locating some marijuana, and the final purchase of marijuana. He testified that Roberts and Johnston, not appellant, transacted the sale of the marijuana:

“A. ... I saw Mr. Roberts get out of the van, Mr. Johnston and Mr. Schlereth that I could actually identify at that time. I approached Mr. Roberts, gave him the money. He then looked in the direction of Mr. Johnston and said, ‘Give the man his grass.’ He went around to the side of the van. At that time Mr. Johnston handed me the grass from behind the passenger’s seat on the top of an old Army coat and at that time is when I first saw the Defendant, John Winters.

“Q. Was he in the van?

“A. He was right there beside the double doors, open doors.

“Q. You sáy you got the grass from whom?

“A. Mr. Johnston.”

Finally, Roberts, as did his two associates, attempted to depict appellant as the prime mover in the drug transaction. He testified that during the trip to Bridgewater, appellant stopped at a trailer, but that “I didn’t notice him carrying anything until he got back to the place of the arrest.” At that time, however, “[h]e had a brown paper bag.”

“Q. Well, did you see where he got the bag?

“A. No, I didn’t.

“Q. Well, how do you know he had a brown paper bag?

“A. Well, when I got out of the van when we returned, I saw him carrying it.

“Q. You saw Winters carrying it?

“Q. From where to where?

“A. Just outside the van.”

Further, Roberts claimed that appellant gave the marijuana to Deputy Cogan: “Q. Did you observe Johnston or Winters or anybody else pass any marijuana to any of the policemen that were there?

“A. I saw Mr. Winters give Cogan two ounces of marijuana.”

Appellant challenges the sufficiency of the evidence. The relevant legal principle is easily stated: In determining the sufficiency of the evidence, this Court must accept as true all the evidence, with all reasonable inferences therefrom, upon which the fact-finder could properly have based its verdict. Commonwealth v. Clark, 454 Pa. 329, 331, 311 A.2d 910 (1973). At the same time, such inferences cannot be based on mere suspicion or speculation. Commonwealth v. Simpson, 436 Pa. 459, 260 A. 2d 751 (1970).

The basis of appellant’s claim is that the three witnesses were inherently incredible because their testimony was in direct conflict with that offered by the two deputies. All three attempted to exonerate themselves by denying that they knew what was in the brown bag or that appellant obtained the marijuana for them to deliver it to the deputies.

Initially, appellant was indicted for delivery to Roberts, Johnston, and Schlereth, not to the deputies. The appellant does not dispute that Roberts delivered the marijuana to Cogan. Therefore, it is clear that someone delivered the marijuana to Roberts. The Commonwealth thus had to depend on the testimony of Roberts, Johnston, and Schlereth to establish how Roberts obtained the marijuana. Although all three denied that they ever possessed the marijuana, they unequivocally stated that they had no marijuana on August 1, a fact corroborated by Yaccich’s testimony, and that at some point during their travels, appellant acquired a brown paper bag containing marijuana. Thus, viewed most favorably to the verdict winner, the Commonwealth proved that early in the day, Roberts and Johnston were unable to procure any marijuana, that appellant told Cogan that he could supply him with marijuana, that appellant entered a trailer and returned with a brown paper bag, that Roberts, at some later point, was in possession of marijuana, and that immediately upon the group’s return from the trip to the trailer, the deputies found a brown paper bag containing marijuana in Johnston’s van. The chain is complete. Although it is obvious from the record that the three witnesses attempted to exonerate themselves, appellant does not contend that their testimony was therefore inadmissible, but rather that it was unworthy of belief. The court correctly charged the jury that “if you find that any of the witnesses have testified falsely in any way, you may reject all of that witness’ testimony which you determine is false and accept, of course, that portion which you conclude and determine is true.” Thus, the issue of the witnesses’s credibility was properly before the jury and was resolved against the appellant. We cannot now overturn that finding.

Appellant also contends that the trial court relied on facts not of record in determining appellant’s sentence.

Prior to sentencing, the court made the following statements: “As we read that record the Defendant here is not a mere seller, not a mere seller out on the street making sales here and there wherever possible. He is part of the distribution system .... We are satisfied that the evidence in this case discloses that not only did he deliver marijuana but he held a position in the distribution system higher than that of a mere seller.”

The judge also stated that, subsequent to appellant’s trial, he had presided at the trial of John and Kathy Glaab, who were found guilty of possession of a controlled substance (marijuana) with intent to deliver. The Glaabs indicated that they had been framed by the appellant. During the sentencing hearing, despite counsel’s protests, the judge made clear that he considered this evidence relevant to his decision. He then sentenced appellant to a term of five years’ imprisonment, the maximum penalty for delivery of a controlled substance.

The facts of the instant case are analogous to those in Commonwealth v. Kulp, 235 Pa. Superior Ct. 397, 344 A. 2d 602 (1975). We remanded for resentencing in Kulp because of the following colloquy:

“[Defense counsel]: ...there is no reason, I believe, to doubt that the sale took place pretty, as such took place pretty much as Mr. Kulp described it. [sic].

“By the Court: This particular sale did, but he was dealing in traffic, which I must keep in mind.

“[By defense counsel]: I don’t think there is any indication of that.

“By the Court: Except he did make a sale and there is no indication it is the only sale he ever made .... The Court might state that I had two or three [other trials] last week, sales from the same station ....” 235 Pa. Superior Ct. at 400-401, 344 A.2d at 603-04. Similarly, appellant was tried for the delivery of marijuana to Roberts, Johnston, and Schlereth; there was no proof of appellant’s participation in drug traffic generally. Further, the court improperly relied on testimony presented at the Glaab trial. Appellant had no way of challenging such obviously self-serving declarations intended to shift criminal liability from the Glaabs to appellant. Cf., Wood v. Tucker, 231 Pa. Superior Ct. 461, 332 A. 2d 191 (1974).

Therefore, we must remand for resentencing.

1 . The Controlled Substance, Drug, Device and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64, §13, as amended; 35 P.S. §780-113(a)(30) (Supp. 1975-76).

2 . All three witnesses were charged with various offenses arising from the events of August 1, 1974. All three, however, had engaged in plea bargaining and were testifying with the understanding that certain of the charges would be nolle prossed.

3 . A “lid” was defined by the deputy as one dose of the drug.