Commonwealth v. Ratsamy
Commonwealth v. Ratsamy
Opinion of the Court
OPINION
We granted allowance of appeal to determine whether the Superior Court failed to apply the proper substantive standard of review for a sufficiency of the evidence claim in a criminal matter. We conclude the Superior Court recognized yet misapplied the standard established by this Court. Accordingly, we vacate the order of the Superior Court and remand for reinstatement of the judgment of sentence.
The relevant facts are as follows. Police officers were conducting undercover surveillance of suspected drug trafficking activity, with a focus on an individual named Lamont Taylor. Officer Martinez observed appellee Robert Ratsamy and another individual, later identified as Rom Sang, approaching Taylor. Appellee lifted his T-shirt to remove a handgun. Appellee placed the gun in his waistband and he
Appellee was charged with conspiracy, drug possession charges, and weapons charges.
In his appeal to the Superior Court, appellee challenged the sufficiency of the Commonwealth’s evidence to support a conviction for PWID. The Superior Court reversed the PWID conviction on sufficiency of the evidence grounds and remanded for re-sentencing on the remaining convictions. Commonwealth v. Ratsamy, 885 A.2d 1005 (Pa.Super. 2005). This Court granted discretionary review to address the standard applicable to an appellate court’s review of a challenge to the sufficiency of the evidence.
“[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction ... does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ” Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (citation omitted) (emphasis supplied). Instead, it must determine simply whether the evidence believed by the fact-finder was sufficient to support the verdict. The Superior Court properly articulated the correct substantive standard enunciated by this Court for review of a sufficiency of the. evidence claim: all of the evidence and any inferences drawn therefrom must be viewed in the light most favorable to the Commonwealth as the verdict winner. Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 (2000). Indeed, the Superior Court quoted at length from its own opinion in Commonwealth v. Lambert, 795 A.2d 1010, 1014-1015 (Pa.Super. 2002), which set forth the proper substantive
However, the Superior Court did not apply this standard in this case. Instead, the Superior Court impermissibly reweighed the evidence presented. The Court opined, “other than the size of the ‘rock,’ there is really no evidence that [Ratsamy] possessed this piece of crack with the intent to deliver it to another.” Ratsamy, 885 A.2d at 1008. However, the trial court found that appellee was “in possession of a significant amount of crack cocaine.” The compatriot’s possession of a large quantity of unused ziplock bags was consistent with an intent to distribute. The expert testified that the circumstances surrounding appellee’s possession established that appellee intended to distribute the contraband. The trial court found the expert’s opinion that appellee possessed the crack cocaine with an intent to deliver to be credible. Trial Court Op. at 5-6.
The Superior Court disregarded the expert’s opinion that appellee possessed the crack cocaine with the intent to deliver. The Court stated “the Commonwealth’s expert opinion represents a leap that is not corroborated by other independent evidence. It is also a leap that does not appear to be totally justified by logic. The piece of crack cocaine seized from [Ratsamy] weighed 6.2 grams, or less than one-quarter ounce,
Moreover, expert testimony is important in drug cases where the other evidence may not conclusively establish that the drugs were intended for distribution. Commonwealth v. Kirkland, 831 A.2d 607, 612 (Pa.Super. 2003), appeal denied, 577 Pa. 712, 847 A.2d 1280 (2004). Such testimony is admissible to aid in determining whether the facts surrounding the possession of controlled substances are consistent with intent to deliver. The amount of the controlled substance is not “crucial to establish an inference of possession with intent to deliver, if ... other facts are present.” Commonwealth v. Ariondo, 397 Pa.Super. 364, 580 A.2d 341, 350-51 (1990). The Superior Court’s own cases follow this reasoning. See, e.g., Commonwealth v. Brown, 904 A.2d 925, 931-32 (Pa.Super. 2006), appeal denied, 591 Pa. 710, 919 A.2d 954 (2007) (the totality of the circumstances established sufficient evidence to support a conviction for possession with intent to deliver); Commonwealth v. Drummond, 775 A.2d 849, 853-54 (Pa.Super. 2001), appeal denied, 567 Pa. 756, 790 A.2d 1013 (2001) (the Commonwealth may establish the essential elements of the crime wholly by circumstantial evidence; the court looks to all facts and circumstances in each case surrounding the possession of the controlled substance).
We hold that, under the proper standard, the evidence was sufficient to sustain appellee’s conviction of PWID. We emphasize that, if the quantity of the controlled substance is not dispositive as to the intent, the court may look to other factors.
Other factors to consider when determining whether a defendant intended to deliver a controlled substance include the manner in which the controlled substance was packaged, the behavior of the defendant, the presence of drug paraphernalia, and larges sums of cash found in possession of the defendant. The final factor to be considered is expert testimony. “Expert opinion testimony is admissible con*184 cerning whether the facts surrounding the possession of controlled substances are consistent with an intent to deliver rather than with an intent to possess it for personal use.”
Commonwealth v. Jackson, 435 Pa.Super. 410, 645 A.2d 1366, 1368 (1994) (citations omitted). Relevant factors in this case were appellee’s possession of the loaded handgun, his interaction with the suspect who was the subject of the narcotics surveillance, the absence of drug use paraphernalia, the location, the 199 unused zip-lock bags, and the quantity of U.S. currency. “[Pjossession with intent to deliver can be inferred from the quantity of the drugs possessed and other surrounding circumstances, such as lack of paraphernalia for consumption.” Commonwealth v. Jones, 874 A.2d 108, 121 (Pa.Super. 2005) (citation omitted).
We conclude that the Superior Court misapplied the governing substantive standard of review, re-weighed the evidence, and disregarded evidence believed by the fact-finder, which was sufficient to support a conviction for PWID. When viewed under the proper standard,, the evidence clearly was sufficient to support the trial court’s finding of PWID. The order of the Superior Court is therefore vacated and the matter remanded for reinstatement of the judgment of sentence.
Order vacated; matter remanded.
. 18 Pa.C.S. § 903; 18 Pa.C.S. §§ 6106, 6108; 35 Pa.C.S. §§ 780-113(a)(16), (30), (32).
. The standard we apply in reviewing the sufficiency of evidence is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for that of the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. Ratsamy, 885 A.2d 1005, 1007 (Pa.Super. 2005) (quoting Lambert, internal citations and quotation marks omitted).
. See also Commonwealth v. Torres, 421 Pa.Super. 233, 617 A.2d 812 (1992), appeal denied, 535 Pa. 618, 629 A.2d 1379 (1993), where appellant was pulled over for speeding and arrested for driving under the influence. An inventory search of the automobile was conducted. During the search, 4.63 grams of cocaine, individually wrapped into seventeen packets, was discovered in appellant’s glove compartment. In addition, three unopened boxes of plastic sandwich bags were found. Two hundred and thirty six dollars were found on appellant’s person. A police officer testified as an expert witness at the trial and opined that
. See also Commonwealth v. Bess, 789 A.2d 757, 761-62 (Pa.Super. 2002) (possession of significant sums of cash, $158.00, absence of drug paraphernalia, and 2.2 grams of cocaine, supported conviction of PWID); Commonwealth v. Johnson, 782 A.2d 1040, 1040 (Pa.Super. 2001) (defendant observed in high drug area by an officer who knew he was on parole, possession of 1.8 grams of crack cocaine, $86.00 in cash, a beeper, and expert testimony, absence of drug paraphernalia for smoking crack sufficient to establish PWID); Commonwealth v. Drummond, supra (six grams of cocaine were seized, with a street value of approximately $ 790).
. We note that Madame Justice Baldwin, in a dissenting opinion, would leave the merits of this case for another day. While acknowledging that there is no federal constitutional right to counsel beyond appeals as of right, and that this Court heretofore has not addressed the issue of whether an appellant has a state constitutional right to counsel on a petition for discretionary review, Madame Justice Baldwin would remand this case for a determination of whether appellee is entitled to counsel, which is tantamount to addressing an issue of first impression not raised before this Court.
. The Comment to this rule provides that "... counsel retains his or her appointment until filial judgment, which includes all avenues of appeal through the Supreme Court of Pennsylvania.” Pa.R.Crim.P. 122 cmt.
Concurring Opinion
Concurring.
I join the substance of the Majority Opinion in full, but write separately to distance myself from its response to the Dissenting Opinion’s call for a remand regarding Defendant Robert Ratsamy’s entitlement to counsel. The Majority suggests that we need not address the issue because it was not raised before this Court. The Majority’s conclusion, however, hits at the very heart of the potential fundamental unfairness of the present situation: Defendant has no counsel to raise the issue because this Court granted his attorney’s petition to withdraw, but nevertheless Defendant is charged with failing to raise such issue. Nonetheless, I conclude that a remand is unnecessary in this case because Defendant was provided with notice of the withdrawal of his counsel, and the potential consequences thereof. I believe that the notice ameliorates my considerable concern for fundamental fairness were this Court to permit a party’s counsel to withdraw without ensuring that the party was aware of the withdrawal.
The facts of this case place Defendant in an apparent gap in the law that otherwise provides indigent criminal defendants with a right or entitlement to counsel at all stages of litigation and a formalized procedure to waive the right or entitlement to counsel on the record. As noted by the Dissenting Opinion, Defendant had appointed counsel in the proceedings before the trial court. He retained private counsel in his appeal to the Superior Court, which granted him relief, reversing his conviction in October 2005. After this Court granted the Commonwealth’s petition for review in December 2006, retained counsel petitioned to withdraw claiming that he was retained solely to represent Defendant on his appeal to the Superior Court and had not been compensated to represent him in the Commonwealth’s appeal to this Court. Based on
Subsequently, this Court’s Prothonotary ascertained Defendant’s address, given his release from prison following the Superior Court’s decision.
I write as a follow-up to our phone conversation of June 6, 2007. As we discussed, the Court allowed your attorney to withdraw from your case before a brief was submitted on your behalf. As a result, you must immediately retain new counsel or [advise] this office that you will proceed pro se in this matter. It is imperative that you make a decision quickly since the brief on your behalf is currently due. Please note that you do not have the ability to discontinue or withdraw this matter because the appeal was filed by the Commonwealth.
Letter from Deputy Prothonotary John W. Person, June 8, 2007. The Prothonotary requested a response by June 13, 2007. When Defendant did not respond, the Prothonotary submitted the case on June 25, 2007 on the brief filed by the Commonwealth, opening the way to this Court’s decision today.
Based on Defendant’s apparent lack of response to the above letter and his failure to request the appointment of counsel, I join the Majority’s rejection of the remand called for by the Dissent, despite the seeming incongruity of the present situation where the defendant has a potential entitlement to counsel both before and after the proceedings before this Court, but not during these proceedings. It is beyond cavil that an indigent defendant has a federal constitutional right to be provided counsel at trial and on any direct appeal as of right. Ross v. Moffitt, 417 U.S. 600, 610, 94 S.Ct. 2437, 2443-
The federal analysis, however, does not end our consideration of Defendant’s entitlement to counsel. Under Pa. R.Crim.P. 122,
Notably, following disposition of any discretionary appeal in this Court, Defendant’s entitlement to counsel re-emerges, assuming his indigence, under our rules of procedure governing collateral review under the Post Conviction Relief Act. Pa.R.Crim.P. 904.
Moreover, wherever there is an entitlement to counsel, either constitutional or rule-based, there is generally a formal procedure in place designed to ensure that any waiver of the right or entitlement is voluntary, knowing, and intelligent. See Pa.R.Crim.P. 121 (“When the defendant seeks to waive the right to counsel after the preliminary hearing, the judge shall ascertain from the defendant, on the record, whether this is a knowing, voluntary, and intelligent waiver of counsel.”); Pa.R.Crim.P. 904(H)(1) (providing that the PCRA judge shall appoint counsel for the purpose of post-conviction collateral review in a capital ease, unless the judge determines that the defendant knowingly, intelligently, and voluntarily waived that entitlement). I additionally have little doubt that a PCRA
Faced with a gap in a defendant’s entitlement to counsel during the discretionary appeal before this Court and the absence of any formalized procedure to determine whether the defendant wishes to represent himself, retain counsel, or request appointed counsel, I recommend the Criminal and Appellate Rules Committees consider whether a rule or rules should be drafted to protect a defendant’s interests in the event that retained counsel withdraws during a discretionary appeal to this Court. Nonetheless, in the present case, I am able to join the Majority Opinion on the merits because the actions of our Court’s' Prothonotary in this case render these unusual proceedings harmless to Defendant’s interests.
. Given the nature of our Prothonotary's role within a case, obviously many of its communications are not introduced, docketed, or otherwise formally made "of record.” Nevertheless, they are kept with this Court's publically accessible file in this case, and are essential to a determination that Defendant's fundamental rights were protected.
. Rule 122. Appointment of Counsel
(A) Counsel shall be appointed:
(1) in all summary cases, for all defendants who are without financial resources or who are otherwise unable to employ counsel when there is a likelihood that imprisonment will be imposed;
(2) in all court cases, prior to the preliminary hearing to all defendants who are without financial resources or who are otherwise unable to employ counsel;
(3) in all cases, by the court, on its own motion, when the interests of justice require it.
(B) When counsel is appointed,
(1) the judge shall enter an order indicating the name, address, and phone number of the appointed counsel, and the order shall be served on the defendant, the appointed counsel, the previous attorney of record, if any, and the attorney for the Commonwealth pursuant to Rule 114 (Orders and Court Notices: Filing; Service; and Docket Entries); and
(2) the appointment shall be effective until final judgment, including any proceedings upon direct appeal.
(C) A motion for change of counsel by a defendant for whom counsel has been appointed shall not be granted except for substantial reasons.
. Rule 904. Entry of Appearance and Appointment of Counsel; In Forma Pauperis
sjs H* sjs
(C) Except as provided in paragraph (H), when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, the judge shall appoint counsel to represent the defendant on the defendant’s first petition for post-conviction collateral relief.
(D) On a second or subsequent [PCRA] petition, when an unrepresented defendant satisfies the judge that the defendant is unable to afford or otherwise procure counsel, and an evidentiary hearing is required as provided in Rule 908, the judge shall appoint counsel to represent the defendant.
(E) The judge shall appoint counsel to represent a defendant whenever the interests of justice require it.
(F) When counsel is appointed,
-}■ V V
(2) the appointment of counsel shall be effective throughout the post-conviction collateral proceedings, including any appeal from disposition of the petition for post-conviction collateral relief.
Dissenting Opinion
Dissenting.
I am unable to join the majority opinion. My reasons for dissenting stem not from the merits of the case, but from the manner in which this case was decided. In short, after the Commonwealth filed its brief in this case, Appellee’s counsel was permitted to withdraw by a one-sentence order from this Court.
Regardless of the existence of a state constitutional right to counsel that extends through the discretionary review process, this Court nonetheless held in Liebel that a criminal defendant “clearly has a rule-based right to counsel under Pennsylvania Rule of Criminal Procedure 122 ...” Id. at 380, 825 A.2d at 633. In Liebel, appellate counsel informed the Appellant by letter that his appeal was unsuccessful in the Superior Court, but that he would file a Petition for Allowance of Appeal (PAA) to this Court. Id. at 377-78, 825 A.2d at 632. However, counsel failed to file the PAA within the thirty day requirement. The Appellant filed a PCRA
This Court reversed.' Irrespective of a constitutional mandate, this Court examined Pa.R.Crim.P. 122, which provides, in pertinent part, that “[w]here counsel has been assigned, such assignment shall be effective until final judgment, including any proceedings on direct appeal.” Pa.R.Crim.P. 122(B)(3) (emphasis added).
The Liebel decision is not, of course, wholly dispositive of this situation. Indeed, the substantial differences between that decision and the matter sub judice have not been addressed by this Court. First, the issue in Liebel involved the failure to file a PAA in a direct appeal, which is a matter of right, and not the subsequent discretionary proceedings. However, nothing in the Liebel opinion indicates that the statutory right to counsel acknowledged there is not to be extended to filing a brief and arguing the case before the Court. To the contrary, the holding of the case, that a criminal defendant “is entitled to the assistance of counsel through his discretionary appeal to this Court on direct appeal” indicates that counsel’s duties go beyond the mere filing of a PAA. Moreover, Rule 122, and the accompanying comment, see note U, supra, make it clear that appointed counsel must continue with his or her representation until the final judgment, including any action taken by this Court.
The second notable difference is that in Liebel counsel was appointed, where, here, counsel was privately retained. Rule 122 clearly imposes its requirements only on appointed counsel. See generally Pa.R.Crim.P. 122 (entitled “Appointment of Counsel”). Nonetheless, the Liebel Court read this rule as providing a criminal defendant with a right to counsel through the entire direct appeal process, provided that the defendant meets the requirements for court-appointed counsel. Thus, if
Lastly, in Liebel, the defendant was the Appellant, Here the defendant is the Appellee. However, neither Liebel nor Rule 122 limits the right to counsel through any proceedings in this Court to the party bringing the appeal. I am not in a position to speculate as to future holdings on this issue, or the others above. This is not the case in which to make those determinations.
Despite the differences between Liebel and the instant case, the Liebel holding is clear that an indigent defendant is entitled, via Pa.R.Crim.P. 122, to counsel through any proceedings in this Court. Thus, unless this Court limits this right to exclude people in Appellee’s situation, the proper and just course of action would be to remand the case to the trial court to determine if Appellee is, in fact, indigent and falls under the purview of Rule 122. If so, counsel must be appointed.
In this case, Appellee’s liberty is at stake. He was convicted of a crime, which was then vacated by the Superior Court. This Court now reinstates the conviction without advocacy from Appellee. Plainly put, there is no compelling, or even reasonable, justification for doing so without first remanding the case for the appointment of counsel, provided Appellee is determined to be indigent. Of course, remanding for the appointment of counsel and the subsequent preparation of a brief would necessarily delay the resolution of this case. However, expediency in this case pales in comparison to
There is, however, a compelling reason to justify a remand. This Court, as well as all those that are bound by and rely on our decisions, benefit from dual advocacy. Decisions should be made only after thoughtful and careful consideration of the law and both sides of the argument. Briefing and argument by the skilled and competent attorneys of this Commonwealth are invaluable assets to the functioning of the judiciary. While we sit as the final arbiters in this Commonwealth, it would be arrogant to believe we can, or should, decide cases without advocacy from the parties. Whether the case involves a pure question of law, an application of a set of facts to an established principle, or a question of constitutional magnitude is of no moment. We should not venture into the waters of unilateral decision-making no matter the type of case involved.
There are, of course, situations where a party waives his or her right to present an argument to this Court, a decision that would undoubtedly be rare. This case may well be one of those situations, but we do not yet know. Appellee could choose to proceed pro se or not to file a brief at all. He may demonstrate that he is indigent and that he desires representation. He should be given the opportunity to do so, particularly where the case law, while not yet explicitly stated by this Court, is fairly clear that he has a right to court appointed counsel until final judgment of a case, including in proceedings before this Court.
In sum, Appellee’s counsel was permitted to withdraw during the briefing process. Appellee gave no indication that he desired to proceed without an attorney or wanted to represent himself.
. Commonwealth v. Ratsamy, 50 EAP 2006, per curiam (May 18, 2007) ("AND NOW, this 18th day of May, 2007, the Petition for Leave to Withdraw is granted.”)
. Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
. At the time of the Liebel decision, this paragraph was included in subsection (C)(2). The rule was subsequently renumbered and the relevant portion of the rule is now found in subsection (B)(2).
. In Daniels, in a per curiam opinion, we ordered the petitioner's court appointed counsel to file a PAA, despite counsel's refusal to do so. We explained that the right to counsel extends to petitioning this Court for discretionary review, when desired by the petitioner. Daniels, 491 Pa. at 291, 420 A.2dat 1323.
. The trial court docket sheet reflects that Appellee was initially represented by the Defender Association.
. If Appellee represented himself, he would be subject to all of the procedural rules that an attorney may be more familiar with, including the time limit and format for filing a brief with this Court. Commonwealth v. Starr, 541 Pa. 564, 580-82, 664 A.2d 1326, 1334-35 (1995). However, we cannot merely assume that Appellee desired to represent himself or was able to afford another attorney and chose not to.
Moreover, Appellee was never given the opportunity to waive his right to an attorney. Typically, waiver of counsel is governed by
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania, Appellant v. Robert RATSAMY, Appellee
- Cited By
- 272 cases
- Status
- Published