Commonwealth v. Johnson

*883DISSENTING OPINION BY KLEIN, J.:

¶ 1 While I agree with the majority in most regards, I do not believe the Commonwealth met the burden of proof regarding the total weight of the drugs delivered.10 Thus, I believe the matter should be remanded for re-sentencing and therefore dissent.

¶2 In this matter, Johnson was sentenced to a mandatory term of incarceration pursuant to 18 Pa.C.S. § 7508(a)(7)(i), possession of at least 1.0 gram but less than 5.0 grams of heroin. The Commonwealth sought to prove the weight of the heroin by extrapolating. Three bundles of heroin, each containing multiple packets, were involved in this case. The Commonwealth weighed and tested one packet from each bundle in order to prove the weight.

¶ 3 I do not believe that this represents a proper basis for determining the total weight for sentencing purposes. First, the extrapolated weight is too close to the minimum weight required, 1.0 gram. Second, given the minute amounts involved in this matter, any variance in weight between packets takes on great significance. Third, there was a significant variance in the weight of the measured packets. Fourth, because of one through three, while it would be burdensome upon the Commonwealth to test every packet as to what it contained, it is not burdensome to put 12 or 13 tiny packets on a scale to determine the actual weight of the heroin.

¶ 4 The factual situations, where known, of the cases cited by the majority and the Commonwealth11 are a far cry from the present situation.

¶ 5 The first thing that must be realized is that we are talking about minute amounts. One gram is the equivalent of .035 ounce. A milligram, the amount used in this case, is 1/1000 of that amount. One of the packets in this case weighed 28 milligrams, that is 28/1000 of a gram or .028 gram. This equates to .00098 ounce. One of the other packets in this case weighed 20 mg. This equates to .020 g or .0007 oz. Even looking at the heaviest of the packets weighed, 54 mg, more than double and almost triple the lightest packet, we must realize that we are speaking of tiny differences. The packet weighing 54 mg, .054 g or .00189 oz, is still only .00119 of an ounce heavier than the .020 g packet.

¶ 6 For comparison and visualization purposes, one extra strength Excedrin tablet contains 250 mg acetaminophen, 250 mg aspirin and 65 mg caffeine for a total of 565 mg. A single tablet of this extra strength over the counter pain reliever is roughly 20 times the weight of the 27 or 28 mg packets of heroin. Imagine a crushed Excedrin tablet (565 mg). Cut the amount in half (280 mg) and then in half again (140 mg) and then in half again (70 mg) and then in half again (35 mg). This is still *884more than the amount of the 28 mg heroin packet.

¶ 7 Looking at the numbers involved in this case, certain observations come to mind.

¶ 8 It would seem to be difficult, if not impossible, to believe that a person could visualize the difference between something weighing .028 g and .020 g. Thus any argument that the packet looked the same would be meaningless when talking about the actual weight of the contents.

¶ 9 It would take fewer than 40 .028g packets to total a gram, 50 of the .020 packets to make a gram, but only 20 of the .054 g packet to total a gram. Thus, the differences in weight of the packets involved in this case are demonstrably significant.

¶ 10 Because it is virtually impossible to visually tell the difference between .020, .028 and .036 g, there is no real assurance that weighing a single packet from any one bundle provides an accurate base from which to extrapolate. This is amply demonstrated by realizing that a single packet from each of the bundles stamped “New Era” weighed .027 g and .036 g. One might expect similarly stamped packets to be of similar weight, but that assumption is demonstrably false.

¶ 11 With those observations in mind, I turn to the extrapolation evidence presented in this case.

¶ 12 For extrapolation to be valid, it requires a sound base. This is the basis for the science of statistics. The sample extrapolated from must be representative of the whole. The drugs confiscated on July 6 have a wide variety of weights ranging from 27 mg to 36 mg. This represents a 33% variation in weight. If we look at the weights delivered in June, we are presented with an even greater variation, from 20 mg to 54 mg. Given the wide variation in weights and the fact that it would be visually difficult to discern the minute differences between the contents of the packets, especially from 20 to 28 mg, then I cannot see how taking one packet from each bundle can in any way provide a reliable representative sampling needed for a proper extrapolation.

¶ 13 When we are dealing in such minute quantities, the smallest variance can make a large difference. This is not a situation such as in Fuentes where the minimum required weight was 1,000 kg and a weight variance of 50% would still produce triple the required weight. Here, there were 37 packets confiscated on the relevant date and the lightest one measured (but not necessarily the actual lightest packet) was 27 mg. If 27 mg is indeed the average weight of the packets, and we have no reason to actually believe that, then the total weight of the 37 packets was 999 mg, which is 1 tiny milligram shy of the required amount.

¶ 14 Considering the above, I cannot agree that the Commonwealth proved a total weight delivered of a single gram by a fair preponderance of the evidence. There has been no showing that there was a proper base from which to extrapolate.

¶ 15 When dealing with such minute quantities as we are in this matter, it would seem to be no particular trouble to obtain the actual weight of the confiscated substance. Surely the scales of the lab in question can measure the total weight of 11, 12 or 13 packets. When a packet is opened to test the substance within, the empty packet can be weighed and the total weight of the packaging determined and then subtracted from the prior weighing. This appears to me to be the safest and surest method of determining weight for sentencing purposes.

*885¶ 16 I agree with the majority that under Commonwealth v. Minott, 395 Pa.Super. 552, 577 A.2d 928 (1990), and subsequent cases, that in certain circumstances the total weight of a delivery of drugs may be determined through extrapolation. What is at issue here is under the specific circumstances of this case, what qualifies as proper extrapolation. I do not believe that the cases cited by the majority or by the Commonwealth are compelling.

¶ 17 In Minott, the Commonwealth seized a single bag of drugs that contained 50 packets of cocaine. The Commonwealth weighed two of the packets and found them to be almost identical — 229 milligrams and 230 milligrams.12 The total weight of the fifty packets was extrapolated to at least 11.4 grams. For sentencing purposes, the relevant amounts were more than 2 grams but less than 100 grams. Even if the chemist managed to randomly pull the two heaviest packets and 48 remaining packets each weighed only 100 milligrams, the 2 gram minimum was easily and obviously reached.

¶ 18 In Commonwealth v. Jones, 413 Pa.Super. 482, 605 A.2d 825 (1992), relied upon by the majority, there does not appear to have been any extrapolation.

At the sentencing hearing on April 12, 1989, the Commonwealth introduced evidence of the precise weight of the cocaine involved: the large bag of cocaine weighted [sic] 19.951 grams, the twenty-four packets in the “Spice Supreme” bottle weighted [sic] 3 .728 grams and the twenty packets weighed 2.722 grams for a total of 26.401 grams of cocaine.

Id. at 826. By all appearances, the Commonwealth provided the actual total weight of the group of 24 and 20 packets of cocaine, not an extrapolated total. However, even if the Commonwealth had extrapolated the total weight of the packets, it would not have mattered because the large bag of cocaine was by itself sufficient to reach the relevant statutory minimum weight of 10 grams. Also, given the fact that the Commonwealth apparently actually weighed all the packets, Jones supports my belief that it is no burden to the Commonwealth to provide the actual total weight of small amounts of controlled substances.

¶ 19 Commonwealth v. Perez, 397 Pa.Super. 574, 580 A.2d 781 (1990), provides no specific guidance at all. That opinion simply notes that two of twenty-two packets were weighed and they extrapolated to 2.21 grams. No specifics were noted as to what each packet weighed. The relevant weights for sentencing in this matter were no less than 2 grams and no more than 10 grams. While Perez may be accepted for the proposition that extrapolation is an acceptable method of determining total weight, but the case is of no real use in determining the specifics of extrapolation. I note that the extrapolated weight was 10% greater than the relevant minimum.

¶20 Commonwealth v. Kleinicke, 895 A.2d 562 (Pa.Super.2006) (en banc), dealt with the number of marijuana plants involved, not the total weight of the drugs involved. As such, I do not believe that Kleinicke has any particular relevance to the present question.

¶ 21 The Commonwealth has cited Asmar v. State of Florida, 416 So.2d 485 (1982), for the proposition that a measurement of one of many items may suffice for extrapolation purposes. In Asmer, the drug involved was methaqualone, more commonly known as Quaalude, and the *886drug came in pill form. The State weighed only one of 1,000 pills and extrapolated the net weight to 795.7 grams. The relevant weights in Asmer were not less than 200 grams and not more than 5 kilograms. I note that pills are generally standardized in size and weight. Once again, even if the single measurement had been off by a half, the total weight would have been more than double the required minimum.

¶ 22 Finally, the Commonwealth cites United States v. Fuentes, 877 F.2d 895 (11th Cir.1989), that allowed for extrapolation where the government weighed one of 250 bales to show that the defendant had possessed at least 1,000 kilograms of marijuana.13 The total weight extrapolated to almost 7,000 kilos, well in excess of the 1,000 kilo minimum, even allowing for variations in bale weight. Even if each of the other bales weighed only 18 kilograms, less than half the weighed bale, the total weight would still be over 3,200 kilos.

¶ 23 What is particularly notable about these cases is that even accepting a certain margin of error, the relevant minimum weights were all obviously reached. In some of the cases, Fuentes and Minott, the weight used to extrapolate the total could have been off by at least double and the required minimum would still have been met. In Asmer, the extrapolated weight was more than 3 times the required minimum.

¶24 However, I realize that the law allows for extrapolation. If extrapolation is to be used in circumstances such as this, the Commonwealth still needs to take care to make sure that basis for extrapolation is sound. A single packet from a bundle, where minute variations are undetectable to the naked eye and those variations can have a significant impact on the ultimate determination, is not a sound basis for extrapolation. It is guesswork.

¶ 25 I would initially propose that in any situation where a mandatory minimum sentence is based upon a minimum weight of 1.0 to 2.0 grams,14 the Commonwealth should simply weigh the amount seized and provide the actual weight. If, however, extrapolation is to be used, then a common sense approach is required. In this matter, weighing three packets from each bundle would likely produce a sufficient basis for extrapolation, especially if the three packets produced similar weights. However, if one of those packets weighed 28 mg, another 24 mg and another 15 mg, then common sense would indicate that we must weigh more packets to obtain a proper base line.

¶ 26 This would not represent a significant change to current procedures. In a matter such as Fuentes, a bale of marijuana will very likely look like any other bale of marijuana and if the difference between weights of the bales is even five kilograms, the fact that there are 250 such bales renders the individual weight differences less important. This is especially true where the minimum weight required for sentences purposes will be easily met due to the number of bales.

¶ 27 If, however, the bale weighed 20 kg and there were 50 such bales, then weighing more bales would be necessary because any variation in weight takes on greater *887significance. This is simple common sense. I note my belief that if the single imaginary bale in this scenario weighed 19 kg, then the Commonwealth would have no trouble whatsoever weighing a few more bales in an effort to show the 1,000 kg minimum had been met. The Commonwealth, in that situation, would want to make sure that it had a proper basis from which to extrapolate, as well it should. The 19 kg bale may well be slightly lower than the actual average weight. It may also be slightly heavier than the actual average weight of the bales. Either way, it is proper, important and necessary to have the correct information.

¶28 The point of this is not to punish the Commonwealth or reward a defendant through a technicality. The point is simply to provide a proper and sound basis for sentencing. In some instances obtaining a proper basis for extrapolation might benefit a defendant, but this does not represent an unfair or improper benefit any more than it would represent an unfair benefit to the Commonwealth in another instance.

¶ 29 For the foregoing reasons I do not believe that the Commonwealth met its burden of proof regarding the total weight of the drugs delivered. Therefore, I dissent and I would reverse and remand on this issue for resentencing.

. For reference throughout this dissent, there are 5 bundles of heroin referenced in the chemistry lab report in this matter. They are: 1) "Party,” 11 packets to the bundle, one packet weighed at 54 mg, delivered on 6/16; 2) “Polo,” 13 packets, 20 mg, delivered on 6/30; 3) "Due,” 12 packets, 28 mg, delivered on 7/6; 4) "New Era,” 13 packets, 27 mg, delivered on 7/6; and 5) "New Era,” 12 packets, 36 mg, found in car 7/6.

. Commonwealth v. Minott, 395 Pa.Super. 552, 577 A.2d 928 (1990); Commonwealth v. Jones, 413 Pa.Super. 482, 605 A.2d 825 (1992); Commonwealth v. Perez, 397 Pa.Super. 574, 580 A.2d 781 (1990); Commonwealth v. Kleinicke, 895 A.2d 562 (Pa.Super.2006)(ew banc); Asmer v. State of Florida, 416 So.2d 485 (1982): and United States v. Fuentes, 877 F.2d 895 (11th Cir.1989). All of these cases will be discussed later in this dissent.

. For further reference throughout this dissent, 1 milligram (mg) is 1/1000 of a gram (.001 g). One gram is equivalent to .035 ounce. One milligram is the equivalent of .000035 oz. Going the other way, there are 28.3 grams per ounce.

. An odd typographical error has followed this case through Pennsylvania case law. Fuentes indicates that the single bale weighed 27.65 kilograms (roughly 60 pounds). However, Minott cites the weight as 27.65 grams (roughly .06 pound). This typographical error has followed the Fuentes case through our case law, including the Commonwealth’s brief. One could hardly call 27.65 grams of marijuana a bale.

. 18 Pa.C.S. § 7508(2)(i), (3)(i), and (7)(i)