Commonwealth v. Johnson, No. 32 EAP 2009 (Pa. August 16, 2011)
Johnson sold one bundle of heroin packets to an undercover officer on June 16 and June 30. He then sold him two bundles on July 6 in separate sales. Before the last transaction, Johnson received the bundle from a man who had just retrieved it from the glove box of a parked Buick. Johnson was arrested, and the heroin stored in the Buick was later seized.
After a bench trial in the Philadelphia Court of Common Pleas, Johnson was found guilty of conspiracy, possession, and possession with intent to deliver. When calculating the total weight of heroin for sentencing purposes, the trial court included the heroin from all four sales and the heroin found in the other man’s Buick. Also considering Johnson’s previous conviction for possession with intent to deliver, the court applied the mandatory minimum sentence and sentenced him to three years’ imprisonment.
Section 7508 of the Pennsylvania Crimes Code addresses mandatory minimum sentencing for drug trafficking:
(a) General rule.–Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply:
(7) A person who is convicted of violating section 13(a)(14), (30) or (37) of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance or a mixture containing it is heroin shall, upon conviction, be sentenced as set forth in this paragraph:
(i) when the aggregate weight of the compound or mixture containing the heroin involved is at least 1.0 gram but less than 5.0 grams the sentence shall be a mandatory minimum term of two years in prison and a fine of $5,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense: a mandatory minimum term of three years in prison and $10,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity;
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Johnson appealed to the Pennsylvania Superior Court. The court found that the heroin sold on June 16 and June 30 should not have been used in the calculation, but affirmed based on its finding that Johnson constructively possessed the heroin found in the Buick, and the combined weight for the three bundles still exceeded one gram. Johnson then appealed to the Pennsylvania Supreme Court.
Unlike the lower courts, the Pennsylvania Supreme Court concluded that Johnson did not constructively possess the heroin seized from the Buick because no evidence suggested that he had joint control over it or the ability or intent to exercise dominion over that heroin. The Court noted that no evidence showed any connection between Johnson and the Buick at all. Johnson was never observed in or near the Buick. He did not own the Buick, have a key or remote entry device, or have any ability to enter the passenger side or trunk. The court observed that Johnson had his own car, and only the man who retrieved the bundle from the Buick had a set of keys.
The Court also rejected the Commonwealth’s alternative theory of conspiratorial liability. The Court found no evidence of an ongoing conspiracy between Johnson and the Buick’s owner beyond that single transaction.
Because evidence was insufficient to show that Johnson constructively possessed the heroin from the Buick or that he engaged in a conspiracy, the Court found that the bundle was improperly included in the trial court’s calculation. Without that bundle, the total weight of heroin did not exceed one gram, therefore the imposition of the mandatory minimum sentence was improper. The Pennsylvania Supreme Court reversed and remanded for resentencing.