Drug Possession and Delivery • Confidential Informant • Sufficiency of the Evidence • Weight of the Evidence

Commw. v. Mack, PICS Case No. 14-0155 (C.P. Lehigh Dec. 17, 2013) Ford, J. (11 pages).

The weight of the evidence supported Mack’s conviction for possession and delivery of heroin. The only witnesses who testified at trial were the two detectives who testified for the prosecution. The defense presented no evidence at trial, and defense counsel in both opening statement and closing argument conceded that Mack was in possession of heroin. The defense did attack the credibility of the detectives, but the jury, by their verdict, resolved any credibility determinations in favor of the commonwealth. Appeal denied.

A detective received information from a confidential informant that a black male called “Antique” was selling heroin. The detective obtained money from his supervisor, photocopied the serial numbers of the bills and met the informant. The informant used a cell phone to call Antique to arrange the purchase of two bundles of heroin. The police set up surveillance where the drug transaction was to take place. A man matching the description of Antique approached and entered the informant’s car. When the informant signaled the police that the transaction had occurred the detective approached the informant’s car and saw Mack in the front passenger seat counting currency. Mack was arrested and the officers took the money and a pack of suspected heroin from his pocket while another detective took two bundles of heroin from the informant. At headquarters, Mack waived his Miranda rights and told the detectives about the person from whom he obtained the heroin.

At trial, the detectives testified as to the buy, Mack’s statements following the Miranda procedure were placed in evidence, a stipulation about lab testing identified the heroin, and the defense counsel in opening statement and closing argument conceded that Mack possessed heroin.

The defense counsel attacked the credibility of the police and contended that the informant had to be called as a witness to prove the delivery of the heroin. The defense established that the Miranda form was undated; the confession was not mentioned in the detective’s affidavit of probable cause; that even though there was visual and audio equipment available at police headquarters, the police did not use the equipment to record the confession and that even though the informant used a cell phone to arrange the buy, no cell phone was found on the defendant.

The jury clearly resolved any credibility issues in favor of the police witnesses and testimony from the informant was not essential to establish the crimes because the commonwealth proved the case based on the testimony of the officers and the exhibits.

Appellate defense counsel challenged the sufficiency of the evidence regarding the possession of heroin. Appellant defense counsel was not trial counsel and thus, was probably not aware that trial counsel admitted to the jury that Mack possessed the heroin and invited the jury to find him guilty of possession so long as the jury found him not guilty of delivery.

The evidence of Mack’s guilt was compelling where the detectives watched Mack enter the vehicle with the informant and then confronted Mack and found marked currency in Mack’s lap and heroin in the vehicle and in Mack’s pocket. Additionally, Mack confessed to both crimes.