# Commonwealth v. Smagala > Supreme Court of Pennsylvania · February 24, 1989 · 383 Pa. Super. 466 URL: https://www.frixlaw.com/law-library/cases/9764125 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. John SMAGALA, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** February 24, 1989 - **Citations:** 383 Pa. Super. 466; 557 A.2d 347; 1989 Pa. Super. LEXIS 407 - **Precedential status:** Published - **Opinion:** Concurring in part by Cavanaugh - **Judges:** Cavanaugh, McEwen, Popovich - **Cited by:** 23 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9764125 ## Opinion text CAVANAUGH, Judge, concurring and dissenting: I concur in that part of the majority opinion which affirms the judgment of sentence on the conviction for possession of a controlled substance. I respectfully dissent from the reversal of the judgment of sentence on the conviction of possession of a controlled substance with intent to deliver. In reviewing a challenge to the sufficiency of the evidence, we are guided by the rule that evidence is legally sufficient to support a verdict if, when viewed in the light most favorable to the Commonwealth, and making all rea *483 sonable inferences flowing therefrom, the jury could find each element of the offense present beyond a reasonable doubt. Commonwealth v. Wienckowski, 371 Pa.Super. 153 , 537 A.2d 866 (1988); Commonwealth v. Griffin, 511 Pa. 553 , 515 A.2d 865 (1986), certiorari denied Griffin v. Pennsylvania, 480 U.S. 940 , 107 S.Ct. 1590 , 94 L.Ed.2d 779 (1987). The majority opinion agrees that there was sufficient evidence of possession of a controlled substance, “beyond dispute”. However, while it concedes that “some evidence of distribution of cocaine is present”, it concludes that it was insufficient to sustain a conviction of possession with intent to deliver. It is this conclusion that I believe is incorrect. The court below stated at page 12, slip opinion: In the instant case the Commonwealth proved that Defendant was in possession of a small quantity of cocaine. It also proved that at the same time Defendant was in possession of tally sheets, commonly used by drug dealers, a large amount of money, glassine bags used for drug distribution and a loaded gun, all of which Defendant concedes give rise to the reasonable inference that he was engaged in the distribution of narcotics. 1 The majority opinion states at page 352: “a common sense review of the facts reveals unequivocally that the appellant possessed the cocaine for personal use, not distribution.” Even counsel for the appellant indicates that the evidence goes beyond this, stating at page 12 of the appellant’s brief: *484 Accepting all of the evidence in the light most favorable to the Commonwealth, all that can be found is that the Appellant was engaged in the sale of drugs. Since there was no evidence that the Appellant was engaged in the sale of drugs at the time of his arrest, the most that can be found is that the Appellant had sold drugs in the past. To be sufficient to prove guilt of possession with the intent to deliver beyond a reasonable doubt, there must be some evidence, however slight, to link the drugs in the Appellant’s possession to a present intent to deliver. (Emphasis added.) Appellant argues that although the evidence established that he had been engaged in selling drugs, he possessed too small an amount at the time of his arrest to support an intention to sell those drugs. Although the majority adopts this reasoning, I find it unpersuasive. Appellant relies on Commonwealth v. Pagan, 315 Pa.Super. 7 , 461 A.2d 321 (1983) to support his contention that absence of an intent to deliver or sell may be inferred where only a small amount of a controlled substance is found. In Pagan, supra, there was no evidence that defendant intended to sell or deliver a controlled substance other than the fact that he possessed a small amount of marijuana. In the instant case, there was substantial additional evidence that the appellant intended to deliver the cocaine in his possession, although he possessed only a very small amount. In addition to the physical evidence seized by the police when the appellant was arrested, there was expert testimony by a police officer that the paraphernalia seized was more consistent with possession of cocaine, with intent to deliver, than mere possession for personal use. Expert opinion testimony is admissible to support an inference that the controlled substance was possessed with an intent to deliver. Commonwealth v. Bagley, 296 Pa.Super. 43 , 442 A.2d 287 (1982). Footnote 3 in Commonwealth v. Harris, 241 Pa.Super. 7, 9 , 359 A.2d 407, 408 (1976) succinctly states the proposition that the possession of a small amount of drugs will not preclude a finding of possession with intent to deliver, as follows: *485 3. In Commonwealth v. Hill, 236 Pa.Super. 572 , 346 A.2d 314 (1975), our court affirmed a conviction for trafficking in narcotic drags under the Act of Sept. 26, 1961, P.L. 1664 § 4 (35 P.S. § 780-4(q)). In that case, although there was no evidence of an actual sale, and although the appellant had only fifteen half-spoons of heroin in his possession at the time of his arrest, our court felt that this amount, coupled with the other factors present, was sufficient for conviction. While Hill dealt with a violation under the old drug act, since repealed, the analogy between that case and the case at bar is sufficient for us to conclude that the amount involved is not necessarily crucial to establishing an inference of possession with intent to deliver, if the proper other facts are present. In the case at bar, the detective’s expert testimony supplied sufficient other facts to support the inference. (Emphasis added.) In Harris, supra, a detective testified that in his opinion the amount of heroin in the possession of the defendant, consisting of sixteen half spoons, indicated that it was not for his personal use, and was possessed for the purpose of distributing it. In the instant case, a police officer, who was experienced in narcotics cases, testified that the cocaine in the appellant's possession at the time he was arrested had a value of about $80.00. His possession of over one hundred small plastic bags used for packaging cocaine was consistent with the distribution of drugs rather than personal use. Further, drag dealers frequently carry a gun for protection, and appellant had a Smith & Wesson, since they carry drugs and large amounts of money. The appellant had over $800 in cash when he was arrested and tally sheets reflecting accounts for various customers. The Commonwealth’s burden of proof may be sustained by purely circumstantial evidence. Commonwealth v. Vishneski, 880 Pa.Super. 495 , 552 A.2d 297 (1989). In my opinion, the totality of the circumstances justified the finding that the defendant possessed cocaine with the *486 intent to sell or deliver. We stated in Commonwealth v. Keefer, 338 Pa.Super. 184, 190 , 487 A.2d 915 , 918: As for the possession with intent to deliver conviction, appellant argues that the quantity and purity of the methamphetamine, as well as the syringes were consistent with personal use, and not delivery, of the substance. That is true. However, appellant fails to mention the other seized items which unequivocally establish more than just personal use: empty glassine baggies, numerous needles used for injecting drugs, and scales. Moreover, appellant had very recently sold the drug to a police informant. Thus, we find the evidence was sufficient on that conviction. We may not reject a determination of the trier of fact which is supported by the evidence, merely because we might have reached a different result in the first instance. The determination of the credibility of witnesses and the appropriate weight to be accorded to the evidence produced at trial is within the sole province of the trier of fact. Commonwealth v. Vazquez, 328 Pa.Super. 86 , 476 A.2d 466 (1984). Accordingly, I would affirm the judgment of sentence in all respects. . The Opinion of the court below by Surrick, J. quotes from pages 7-8 of the defendant’s brief in support of his post-trial motions, as follows: The difficulty in this case arises out of the fact that the Defendant was in possession of only a small amount of controlled substance under circumstances consistent with the use of drugs, while at the same time there is evidence that the Defendant was engaged in the distribution of drugs. ****** While the possession of the tally sheets, the money, the numerous glassine bags and the gun are sufficient to give rise to inferences that the Defendant was engaged in the distribution of narcotics, there is no evidence that the 0.8 gram was part of a larger quantity which had been distributed. (Emphasis added.) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9764125. Public record. Not legal advice.