Commonwealth v. Johnson

Justice EAKIN,

concurring.

I concur with the majority’s holding insofar as it applies to the facts of this case, but write separately to acknowledge the dissent’s statement of conspiracy law. We granted allowance of appeal to answer the following question:

[WJhether a person who sells packets of heroin, which were retrieved from an automobile parked on the street by a third party who was sitting in the automobile and who accepted money from the sale, may be deemed to have constructively possessed additional packets of heroin stored in the automobile found during a search conducted after his arrest?

Commonwealth v. Johnson, 602 Pa. 201, 979 A.2d 842, 842-43 (2009) (table). The simple answer is yes — a person who sells packets of heroin may constructively possess additional packets of heroin stored in a co-conspirator’s automobile. However, a defendant’s constructive possession of a co-conspirator’s drugs still must be proven; in this case, I agree with the majority that it was not.

Nonetheless, the dissent correctly recites well-settled statements of law in concluding that heroin found in a co-conspirator’s possession may be attributable to the defendant as a result of conspiratorial liability. Dissenting Op., at 411-14, 26 A.3d at 1096-98 (citations omitted). Here, the evidence proves a conspiracy between appellant and Wilson to sell the drugs delivered to the officer. However, the evidence is *411insufficient to establish the conspiracy extended to the additional heroin stored in Wilson’s Buick for the reasons set forth by the majority. See Majority Op., at 405-10, 26 A.3d at 1092-95.

One can be a conspirator with a supplier in different capacities: as the supplier’s source, as a partner, as a middleman, or as a customer. However, as a customer or middleman one does not constructively possess all that the supplier has, absent additional evidence establishing that connection. Appellant shopped at Wilson’s store, but that does not mean he possessed all Wilson’s stock in trade. Accordingly, I concur with the majority vacating the imposition of the mandatory minimum sentence under 18 Pa.C.S. § 7508(a)(7)(i).

Justice ORIE MELVIN joins this opinion.