J-S47021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    MICHELLE CROWLEY                           :   No. 1728 WDA 2017

               Appeal from the Order dated November 13, 2017
      In the Court of Common Pleas of Butler County Criminal Division at
                       No(s): CP-10-CR-0000874-2016


BEFORE:      OLSON, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY McLAUGHLIN, J.:                          FILED AUGUST 24, 2018

       The Commonwealth appeals from the order entered November 13,

2017, which granted the motion in limine filed by Michelle Crowley to prevent

testimony from a police officer that items seized in this case contain

marijuana.1 The trial court determined that, absent chemical analysis of the

items, the officer’s testimony was impermissible. However, it is well settled

that chemical analysis of suspected narcotics is not required, provided there

is alternative direct or circumstantial evidence sufficient to identify the

narcotics. Accordingly, we reverse.

       In March 2016, Officer Michael Bordt was dispatched to the Mellinger

residence. See Criminal Complaint, 04/14/2016, Affidavit of Probable Cause.
____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1 The Commonwealth certifies that the order granting the motion in limine
substantially handicaps the prosecution of this case. See Pa.R.A.P. 311(d).
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The Mellingers requested police involvement when they discovered that the

child of Rebecca Mellinger’s niece, Michelle Crowley, had a marijuana joint in

her mouth. Id. Both Crowley and her child were staying at the Mellinger

residence. Id. When Officer Bordt arrived, the Mellingers provided to him

what appeared to be a small bag of marijuana, a marijuana joint, and several

items of drug paraphernalia.         Id.   Thereafter, the Commonwealth filed an

information charging Crowley with possession of a small amount of marijuana,

possession of drug paraphernalia, and endangering the welfare of a child.2

See Information, 05/24/2016.

        Delays prevented the timely commencement of trial proceedings. For

example, Crowley failed to appear for several pretrial conferences, resulting

in the issuance of bench warrants.             See, e.g., Bench Warrants issued

08/08/2016, 07/05/2017, and 09/14/2017.

        In November 2017, just prior to trial, Crowley presented an oral motion

in limine, seeking to prevent testimony from Officer Bordt that items seized

from the Mellinger residence contain marijuana. Notes of Testimony (N.T.),

11/13/2017, at 2. According to Crowley, as the items were never sent to a

lab for chemical testing, no expert testimony could establish the presence of

marijuana. Id. Following an offer of proof from the Commonwealth, outlining

Officer Bordt’s training and experience, as well as argument from the parties,

the court granted Crowley’s motion. Id. at 6.

____________________________________________


2   See 35 P.S. §§ 780-113(a)(31), (32); 18 Pa.C.S. § 4304(a)(1), respectively.

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      The Commonwealth timely appealed and filed a court-ordered Pa.R.A.P.

1925(b) statement. The trial court issued a responsive opinion, in which it

acknowledged that the identity of narcotic substances may be established by

circumstantial evidence and requested that this matter be remanded for

further proceedings. See Trial Court Opinion, filed February 20, 2018, at 2

(citing cases).

      The Commonwealth raises the following issue on appeal:

      Whether the trial court erred in granting [Crowley’s] motion in
      limine barring the Commonwealth from presenting testimony that
      the seized substance is, in fact, marijuana[.]

Commonwealth’s Br. at 1 (italics added).

      We review a trial court’s decision to grant a motion in limine for an abuse

of discretion. Commonwealth v. Belani, 101 A.3d 1156, 1160 (Pa.Super.

2014).

      A trial court has broad discretion to determine whether evidence
      is admissible, and [its] ruling regarding the admission of evidence
      will not be disturbed on appeal unless that ruling reflects manifest
      unreasonableness, or partiality, prejudice, bias, or ill-will, or such
      lack of support to be clearly erroneous.

Id. (internal quotation marks and citation omitted).

      The Commonwealth contends that the trial court erred in granting

Crowley’s motion in limine to preclude Officer Bordt from testifying that the

items seized are or contain marijuana. Commonwealth’s Br. at 5. According

to the Commonwealth, the identity of suspected narcotics may be established

by direct or circumstantial evidence and need not be confirmed by chemical


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analysis. Id. (citing Commonwealth v. Williams, 428 A.2d 165 (Pa.Super.

1981)). Based on Officer Bordt’s training and experience, the Commonwealth

asserts that his testimony is admissible and its credibility left to a jury. Id. at

5-6.

       In response, Crowley concedes that circumstantial evidence may

“sometimes be used to identify narcotics” but asserts that “[s]ometimes

chemical analysis is required.”    Crowley’s Br. at 4 (unpaginated) (citing in

support Commonwealth v. Carpio-Santiago, 14 A.3d 903 (Pa.Super.

2011)). Though it is not entirely clear from Crowley’s argument, she seems

to suggest that Officer Bordt’s experience and training were insufficient to

inform his direct, visual and olfactory observations. See Crowley’s Br. at 4-

6. Rather, Crowley seems to suggest, additional testimony from a treating

physician, hospital records, or identification testimony from a pharmacologist

was required. See id. at 4 (citing in support Commonwealth v. Lambert,

313 A.2d 300 (Pa.Super. 1973)); see also N.T. at 3 (suggesting that Officer

Bordt was required to have a “background in chemistry”).              Absent this

additional evidence, according to Crowley, chemical analysis should be

required. See Crowley’s Br. at 4.

       Initially, we must clarify that the testimony proffered by the

Commonwealth      constitutes   direct—not    circumstantial—evidence.        See

Commonwealth’s Br. at 5-6 (suggesting that Officer Bordt’s testimony is

“mainly circumstantial”); Crowley’s Br. at 4 (unpaginated) (attempting to




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distinguish when circumstantial evidence is “alone” sufficient and when not);

Trial Ct. Op. at 2 (addressing adequacy of circumstantial evidence).

        The basic distinction between direct and circumstantial evidence
        is that in the former instance the witnesses testify directly of their
        own knowledge as to the main facts to be proved, while in the
        latter case proof is given of facts and circumstances from which
        the jury may infer other connected facts which reasonably follow,
        according to the common experience of mankind.

Commonwealth v. Broughton, 390 A.2d 1282, 1284 (Pa.Super. 1978)

(quoting 29 Am.Jur.2d, Evidence § 264 at 312).            Here, Officer Bordt was

prepared to testify as to his direct observations as to the nature of the items

seized, as informed by his training and experience.         N.T. at 5.   While the

persuasiveness of this testimony may be less compelling than chemical

analysis, it nonetheless constitutes direct evidence. Broughton, 390 A.2d at

1284.

        It is well settled in Pennsylvania that “[t]he existence of narcotic drugs

does not have to be proved by chemical analysis and may be proved either by

direct or circumstantial evidence.”       Williams, 428 A.2d at 167.        Indeed,

merely circumstantial evidence is adequate. See, e.g., Commonwealth v.

Minott, 577 A.2d 928, 932 (Pa.Super. 1990) (noting well-established policy

that circumstantial evidence is sufficient and applying to extrapolation method

employed to ascertain quantity of narcotics seized); Commonwealth v.

Stasiak, 451 A.2d 520, 525 (Pa.Super. 1982) (rejecting need for chemical

analysis of suspected narcotics where circumstantial evidence, consisting of

sealed and labelled bottles recently stolen from pharmacy, was sufficient);

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Commonwealth v. Leskovic, 307 A.2d 357, 358 (Pa.Super. 1973) (rejecting

need for chemical analysis of capsules allegedly provided victim where

description matched that of known barbiturate and urine sample of victim

revealed quantity of barbiturate in bloodstream).

      Thus, Crowley’s suggestion that the Commonwealth was required to

secure chemical analysis is not persuasive. Principally, she relies on Carpio-

Santiago, in which this Court held, based on the facts present, that

circumstantial evidence was insufficient to establish the quantity of narcotics

required to trigger a mandatory sentence. Carpio-Santiago, 14 A.3d at 906

(thereafter distinguishing Stasiak, et al.). Briefly, in that case, police seized

suspected narcotics from several locations at the defendant’s residence. Id.

at 904. Though chemical analysis confirmed the presence of narcotics in most

of the items seized, it also found no evidence of narcotics in two plastic bags

recovered from the defendant’s house and shed.           Id.   Nevertheless, the

sentencing court included the weight of this evidence in calculating the

aggregate weight of narcotics.      Id. at 906.    On appeal, we rejected the

sentencing court’s reliance on circumstantial evidence to justify its calculation:

      The     instant    facts    are   readily    distinguishable    from
      [Commonwealth v.] Lawson, [671 A.2d 1161 (Pa.Super.
      1996),] Stasiak, and Leskovic. In none of these cases did
      scientific/chemical testing reveal an absence of the controlled
      substance. This factual difference with the instant case is critical.
      Indeed, though circumstantial evidence alone can sometimes be
      used to identify narcotics, like in Stasiak and Leskovic, the
      Commonwealth fails to point to any case in which circumstantial
      evidence is sufficient in the face of a negative chemical test.



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Id. at 907 (emphasis in original).    Based on the critical factual distinction

recognized, a distinction irrelevant here, Crowley’s reliance on Carpio-

Santiago is misplaced.

      Similarly, Crowley’s citation to Lambert is unhelpful. In that case, the

defendant was charged with certain drug-related crimes, as well as corruption

of minors, after it was alleged that he supplied pills to a child. Lambert, 313

A.2d at 300. The Commonwealth failed to prove that the pills were “dangerous

drugs.” Id. Nevertheless, the trial court denied the defendant’s demurrer to

the corruption charge. Id. On appeal, we reversed the judgment of sentence.

Id. at 301. In so doing, we rejected the trial court’s belief that the absence

of evidence tending to prove that the pills were dangerous drugs was

irrelevant. Id. We stated as follows:

      By specifically charging the manner by which appellant was
      alleged to have corrupted the morals of these minors, the
      Commonwealth was required to prove that appellant did furnish
      them with dangerous drugs. The Commonwealth could have done
      so by direct or circumstantial evidence through analysis of the
      pills, testimony of the treating physician, hospital reports, or
      identification of the pills by a pharmacologist. Having failed to do
      so, the Commonwealth did not prove the offense as charged in
      the indictment, and appellant’s motion in arrest of judgment
      should have been granted.

Id.   Thus in Lambert, it was the absence of any evidence—direct or

circumstantial—that warranted reversal.       Moreover, placed in its proper

context, our suggested list of possible evidence sufficient to establish that the

defendant had supplied narcotics to the child was illustrative and not

exhaustive.

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      Here, in responding to Crowley’s motion, the Commonwealth made the

following offer of proof:

      [THE COMMONWEALTH]: Your Honor, the Commonwealth plans
      to present testimony from Officer Bordt that he had smelled the
      substance and he has extensive training and knowledge as to what
      the substance is and that he had found it to be marijuana through
      his training and experience and the smelling of the substance.

      ...

      [H]is training and experience comes, number one, through the
      police academy, and number two, through hundreds of different
      cases and instances where he’s had to deal with it in the field.
      He’s been an officer for five years and he’s dealt with marijuana
      on countless occasions.      The police academy goes through
      extensive training on this.

N.T. at 5.

      This proffered testimony constitutes direct, admissible evidence that the

items seized from the Mellinger’s residence are or contain marijuana. In light

of our well-established precedent, the trial court’s decision to grant Crowley’s

motion in limine, precluding this testimony, was clearly erroneous.        See

Williams, 428 A.2d at 167. Accordingly, the court abused its discretion, and

we reverse. Belani, 101 A.3d at 1160.

      Order reversed; case remanded; jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2018




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