Commonwealth v. Wright

¶1Dissenting Opinion by

¶2Appellant was tried before the Honorable Mema B. Marshall without a jury and convicted of possession of a controlled substance with the intent ty) deliver same. In this appeal, appellant contends, inter alia, that the evi*90dence was insufficient to convict him of the crime charged.1

¶3While driving “too slow for conditions”, appellant’s automobile was stopped by a police officer in the City of Philadelphia. When appellant was unable to produce a registration card, the police officer checked the serial number located on the door jamb of the car to determine whether the car had been stolen. While he was copying the number, the officer noticed a number of glassine bags bound together by a rubber band. Suspecting the bags to contain drugs, the officer arrested and handcuffed appellant. Appellant subsequently told the police that he was an addict.

¶4At trial, the Commonwealth introduced the seized heroin2 and a police officer’s “expert opinion” that the appellant was not an addict. The bundle consisted of twenty-five glassine bags, each containing between 1.3 to 1.9 grains of a mixture of heroin and quinine.

¶5In finding the appellant guilty, the trial court relied upon three factors: a) the evidence that appellant was not an addict; b) the narcotic being the type which was usually sold to addicts; and, c) the quantity of heroin involved. From these factors, the court stated that the inference of possession with the intent to deliver could be properly drawn.

¶6The only evidence of appellant’s not being an addict was the opinion of a police officer who, despite experience in drug investigations, had no special training to establish expertise in identifying drug addicts. Although the officer stated that he could find no needle marks on appellant, the officer did admit that appellant had previously stated that he used heroin by “snorting” it through his *91nose. Although the officer opined that appellant did not “snort” narcotics, he was unable to factually support his opinion.3 The officer did not have a physician examine appellant to determine whether appellant used narcotics. In short, the officer’s opinion was so speculative as to be of little value.

¶7The second factor, that the narcotic was the type usually sold to addicts, must be discounted entirely, for it is equally true that it would also be the type of narcotic bought and used by addicts to support a drug habit. Thus, from the type of narcotic involved, the inference that appellant intended to sell the drug is no stronger than the inference that he bought and intended to use it himself.

¶8The final factor underlying the court’s finding of guilt is the amount of heroin involved. Although there are no cases under the Pennsylvania “Controlled Substance, Drug, Device and Cosmetic Act” defining the oifense of “possession with intent to deliver”4 or the proof necessary to sustain a conviction thereunder, cases under the similar federal statute5 allow the inference of intent to deliver to be drawn from proof of possession of a large quantity of drugs that is more likely to be consistent with trafficking in drugs than with personal use thereof. See United States v. Mather, 465 F.2d 1035 (5th Cir. 1972); United States v. Ortiz, 445 F.2d 1100, 1104 (10th Cir. 1971) ; *92United States v. Echols, 477 F.2d 37 (8th Cir. 1973) ; United States v. Perry, 480 F.2d 147 (5th Cir. 1973). Although the inference is not statutorily compelled, these cases have generally employed the test established in Leary v. United States, 395 U.S. 6, 35, 89 S. Ct. 1532, 1548 (1969) that there be such a rational connection between the inferred fact and the proven fact that it can be said with substantial assurance that the former more likely than not flows from the latter. See United States v. Mather, supra. Applied to this case, the question is quite simply whether a person who admits to drugs addiction and possesses twenty-five small glassine packets of heroin, possesses it with intent to deliver or for personal use. Although twenty five bags may sound like a rather large amount, it is, in reality a relatively small amount. With fi. street value of between five to seven dollars a bag, the bundle was worth at most one hundred and seventy-five dollars. The total weight of the heroin and quinine mixture at an average of 1.5 grains per bag was approximately two grams. Judicial notice may be taken of the fact that a heroin addict, depending on the person and the quality of the heroin, may use twenty-five bags in a day. We may also note the fact that heroin is often purchased in “bundles”. Considering these matters, it is my opinion that the inference of intent to deliver in this case is no stronger than an inference of personal use.

¶9This is not to say that such a quantity will never support such an inference. The determination is necessarily an individualized one, depending on the facts and circumstances of each case. United States v. Gonzalez, 442 F.2d 698 (2d Cir. 1971). To support the inference, the following may, in addition to quantity, be considered: whether the defendant is a drug user; the possession of paraphernalia for drug distribution; the purity of the drug; the manner of its packaging; or other admissions and behavior of the accused indicative of trafficking in rather than simple use of narcotics. See e,g., United *93States v. Contreras, 446 F.2d 940 (2d Cir. 1971); State v. Arce, 107 Ariz. 156, 483 P.2d 1395 (1971). These additional factors are absent in the instant case and the quantity alone does not support the inference of intent to deliver.

¶10The judgment of sentence should be reversed and a new trial granted.