COMMONWEALTH v. PELZER (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant, Anthony Pelzer, was convicted of possession of cocaine with intent to distribute, see G. L. c. 94C, § 32A (c); removal of identification numbers of a firearm while committing or attempting to commit a felony, see G. L. c. 269, § 11B; and leaving the scene of a collision causing property damage, see G. L. c. 90, § 24 (2) (a).² On appeal, he contends that (1) the Commonwealth failed to prove beyond a reasonable doubt that he intended to distribute the cocaine in his possession, (2) his conviction of removal of identification numbers of a firearm while committing a felony should be reversed because the Commonwealth did not prove that he committed a felony, and (3) the conviction of leaving the scene of a collision causing property damage should be reversed because the conviction was based on improper opinion testimony on the ultimate issue of the defendant's guilt. We affirm.

Discussion. 1. Sufficiency -- intent to distribute. The defendant contends that the Commonwealth failed to present sufficient evidence to support the inference that he intended to distribute the cocaine found on his person. Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Alvarado, 93 Mass. App. Ct. 469, 471 (2018), the jury could have found the following facts. On July 18, 2017, Detective Daniel Moynahan of the Springfield Police Department was conducting surveillance of activity on Salem Street. He saw a woman and two men at the corner of Spring Street and Salem Street. He later identified the two men as Aaron Butler and the defendant, Anthony Pelzer. Detective Moynahan saw the defendant motion towards Butler with one finger, walk down the street, and reappear a couple of minutes later in a black Toyota RAV4. The defendant, the only occupant of the Toyota, parked in front of a red Nissan Maxima, from which Butler emerged. Butler approached the driver's side door of the Toyota, and the defendant provided Butler with money in exchange for a small item. While the defendant inspected the item in his hand, Butler walked back to the Nissan and then returned to the Toyota to give the defendant money.

Detective Moynahan, believing that a narcotics transaction had taken place, directed uniformed officers to stop the defendant. When the officers arrived, they pulled behind the Toyota in a police cruiser, activated their blue lights, and got out of the cruiser. In response, the defendant fled. As he drove away, Detective Moynahan saw the defendant holding a drawstring bag with a camouflage pattern in his right hand as he rolled down the front passenger window. When the defendant passed Detective Moynahan, Moynahan could no longer see the defendant, but did see the camouflage bag roll to a stop in the street. Detective Moynahan instructed another officer to secure the bag, which contained a functioning .380-caliber handgun. The serial number was obliterated.

The officers returned to the cruiser and pursued the defendant, who was driving away at a high rate of speed. They saw the defendant as he turned off Salem Street and hit a parked Jeep Grand Cherokee. The defendant stopped for one-half second, and took off. After driving approximately one-hundred feet, the defendant got out of his car and ran down Elliot Street.

The officers pursued the defendant on foot, tackled him, and took him into custody. They conducted a search incident to arrest and recovered a bag of cocaine containing thirteen smaller “dime” bags of crack cocaine, a $60 bag of powder cocaine, and $230. The Commonwealth's expert, Officer Mark Templeman, testified that it is uncommon for a drug user to possess both cocaine and crack cocaine, and that the packaging in dime bags was consistent with distribution. He also testified that a lack of a pipe or other paraphernalia for personal use was indicative of distribution, rather than simple possession.

The defendant submits that the officers observed a transaction in which he was the purchaser, not the seller, and that the limited amount of the drugs seized during the search, combined with the lack of scales, baggies, a pager, or other indicia of distribution, renders the evidence insufficient. Although a sale by (rather than to) the defendant, see Commonwealth v. Clark, 446 Mass. 620, 624 (2006), or the presence of scales in the car, see Commonwealth v. Montalvo, 76 Mass. App. Ct. 319, 327 (2010), would have made this a more straightforward case, we cannot say that the evidence was so deficient that no reasonable jury could have rendered a guilty verdict. The Commonwealth's theory at trial was that the defendant had purchased the drugs for resale. The jury were warranted in finding the defendant guilty of possession with intent to distribute based on the expert testimony concerning the type, packaging, and amount of the cocaine, the lack of personal use paraphernalia found on the defendant's person or in his car, the defendant's flight from the police, and his possession of a defaced firearm.

“To be sure, ‘[e]ach instance of prosecution for possession with the necessary intent has its own singularities, which makes precedent a somewhat imperfect guide.’ ” Montalvo, 76 Mass. App. Ct. at 327, quoting Commonwealth v. Sendele, 18 Mass. App. Ct. 755, 758 (1984). The expert's testimony that it was unusual for a user (as opposed to a seller) to have two different types of cocaine sets this case apart from others where the evidence was found to be insufficient. See generally Commonwealth v. Acosta, 81 Mass. App. Ct. 836 (2012); Montalvo, supra.

The other evidence regarding the cocaine itself, if considered alone, could be taken as more ambiguous. The number of bags of crack was greater than the number of bags in cases where the number alone was held to be too low to support an inference of distribution, see, e.g., Commonwealth v. Sepheus, 468 Mass. 160, 165 (2014), and cases cited, but there was no evidence as to weight, whether the packaging was unique or uniform, or that the baggies were bundled. Compare Clark, 446 Mass. at 624. However, there was also evidence of a lack of implements for personal use. See Commonwealth v. Gollman, 436 Mass. 111, 116 (2002). While this evidence has been characterized as “weak” in the absence of other factors, see Sepheus, supra at 168, other factors were present here. In addition to the evidence that the defendant had two different types of cocaine in his possession, the jury heard evidence of the defendant's rapid flight resulting in damage to another vehicle, the foot chase, and the effort to abandon the defaced firearm. Flight is a relevant factor, and while not sufficient on its own, may be considered along with other evidence of intent to distribute. Commonwealth v. Gaston, 86 Mass. App. Ct. 568, 575 (2014). Similarly, the jury were permitted to draw the inference that “the defendant had a readily accessible ․ handgun ․ so he could protect his ․ individually packaged pieces of crack cocaine ․ when, and if, he had notice that the contraband, and his safety in conducting the criminal enterprise, were threatened.” Commonwealth v. Hines, 449 Mass. 183, 188-189 (2007).³ The jury would have been warranted in finding that the defendant had purchased two types of cocaine as inventory for resale, and that upon being discovered, panicked, fled, and attempted to discard a firearm used for personal protection in a retail cocaine distribution operation. Considered as a whole, the evidence was sufficient to support a finding of intent to distribute.

2. Sufficiency -- firearm offense. As we have concluded that the evidence is sufficient to support the defendant's conviction of a felony, the sufficiency challenge to his conviction of removal of the identification numbers of a firearm while committing or attempting to commit a felony is unavailing.

3. Ultimate issue. The defendant contends that his conviction for leaving the scene of an accident involving property damage should be reversed because Officer Seth Barker gave improper opinion testimony touching on the ultimate issue of the defendant's guilt. Because there was no objection to this testimony, we review for error and, if established, whether that error created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297 (2002).

To support a conviction for leaving the scene of a collision involving property damage, the Commonwealth must prove, among other things, that the defendant left the scene without making his name, personal information, and registry number of his vehicle known. See G. L. c. 90, § 24 (2) (a). See generally Commonwealth v. LeBlanc, 475 Mass. 820 (2016). On direct examination, Officer Barker testified that he saw the defendant hit the Jeep Grand Cherokee and “basically leave the scene.” The use of the language “leave the scene” went to the ultimate issue in the case, and if believed, would be indicative of guilt. “The danger posed by a witness, especially a police officer witness, offering an opinion regarding a defendant's guilt is ‘that the jury might forego independent analysis of the facts and bow too readily to the opinion of an expert or otherwise influential witness.’ ” Commonwealth v. Canty, 466 Mass. 535, 542-543 (2013), quoting Commonwealth v. LaCorte, 373 Mass. 700, 705 (1977).

While the officer's statement was made in error, there was no substantial risk of a miscarriage of justice. See Canty, 466 Mass. at 542-543. As soon as he made the statement, the officer stopped and corrected himself. The testimony immediately preceding and following the challenged statement was purely factual and descriptive.³ The owner of the Jeep Grand Cherokee involved in the crash testified that no one provided their name or identification after the collision. The evidence that the defendant left the scene was overwhelming. There was no substantial risk of a miscarriage of justice.

Judgments affirmed.

FOOTNOTES

2.   The defendant was also convicted of possession of a firearm without a license, see G. L. c. 269, § 10 (a); and operation of a motor vehicle with a suspended license, see G. L. c. 90, § 23.

3.   We do not consider the $230 in cash found on the defendant to be an amount of money sufficient to support a finding of intent to distribute. See Sepheus, 468 Mass. at 166 ($312 insufficient to support inference of intent to distribute).

3.   Officer Barker testified, “Once we got back into our cruiser, we continued on. And as we turned the corner, we could see the vehicle, the RAV -- the Toyota -- has made contact with a parked vehicle, a -- a Jeep Grand Cherokee. And we saw him basically leave the scene from -- you could see the Grand Cherokee move from when he hit the Grand Cherokee taking the turn, and then he continued on for a short while.”