A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose
Click to download majority Opinion J-2-2010mo
Click to download concurring OpinionJ-2-2010co
Click to download dissenting OpinionJ-2-2010do
The Supreme Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania v. Omar JOHNSON, Appellant, 2011 WL 3570119, No. 32 EAP 2009 (Aug. 16, 2011), an appeal from an Order of the Superior Court entered on March 12, 2007, 920 A.2d 873 (Pa.Super.2007), No. 1158 EDA 2005, affirming a Judgment of Sentence entered on March 14, 2005 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP–0408–0232.

The case was before Justices CASTILLE, SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN. Justice TODD wrote the Opinion joined by Chief Justice CASTILLE, Justice SAYLOR and BAER and Justice ORIE MELVIN. Justice EAKIN filed a concurring opinion in which Justice ORIE MELVIN joined. Justice McCAFFERY filed a dissenting opinion. The Appellant was represented by the Defender Association of Philadelphia.

The appeal concerned possession with intent to deliver heroin and, specifically, the question of whether the trial court properly calculated the total weight of heroin for the purpose of imposing a mandatory minimum sentence under 18 Pa.C.S.A. § 7508(a)(7)(i) of the Crimes Code. The Court held that the trial court erred in finding that a single purchase of one bundle of packets of heroin from a third person, who retrieved the bundle from a parked Buick automobile, coupled with Appellant’s immediate resale of that bundle to an undercover officer, formed an adequate basis for its conclusion that Appellant was in constructive possession of a second bundle of packets of heroin stored inside of the Buick discovered during a subsequent police search.

The relevant facts were that the Appellant phoned a man named Wilson to request a single bundle of heroin. When Appellant arrived at Wilson’s location, Appellant had a conversation with Wilson, which occurred on a public street corner. Wilson had a Buick. After engaging in this conversation, Wilson returned to the Buick while Appellant remained standing on the street corner. Appellant did not accompany Wilson to the Buick. While Appellant was standing on the street corner, Wilson entered the Buick, retrieved the bundle of heroin from the glove box area, and returned to where Appellant was standing on the street corner. After Appellant obtained the money from his customer, he delivered that money and other money in his pocket to Wilson, again remaining outside of the Buick. Later, when Wilson was arrested, he was discovered with the keys to the Buick in his pocket.

Importantly to the Court, there was no proof presented at trial that Appellant had any connection to the Buick whatsoever as no evidence of any ownership interest by him in the Buick was introduced, and he was never observed in or near the Buick, at any time before or after Wilson’s entry. Likewise, there was no evidence brought forward at trial to show that Appellant had any ability to enter into the Buick’s passenger compartment or trunk if he so desired. Appellant had his own vehicle, and it was only Wilson who had a set of keys for the Buick. Further, no evidence was offered to indicate Appellant had any other means of access to the Buick via a separate key or a remote entry device. Consequently, the totality of the evidence simply did not establish a proper basis for the trial court’s finding that Appellant was in joint constructive possession with Wilson of the second bundle of heroin stored inside the Buick, since the evidence did not demonstrate that Appellant had joint control over, and equal access to, the Buick with Wilson, nor did it support an inference that Appellant had any ability to exercise conscious dominion over the bundle of heroin in the Buick, or any power or intent to control it.

Because the amount of heroin seized from the Buick was erroneously included by the trial court in the calculation of the total amount of heroin Appellant was found to have possessed with intent to deliver, thereby resulting in an improper imposition of a mandatory minimum term of three years imprisonment under 18 Pa.C.S.A. § 7508(a)(7)(i), the Court reversed and remanded for resentencing.

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