Com. v. Persavage, J., Jr.
2031 MDA 2015
| Pa. Super. Ct. | Oct 12, 2016Background
- On June 19, 2013 a confidential informant (CI) arranged a buy of 8 ounces of cocaine from Jeffrey Persavage for $9,000; law enforcement planned a buy‑bust.
- Persavage and cohort Joshua Seedor arrived near the prearranged location; officers arrested Persavage and Seedor and searched Persavage’s vehicle, recovering the quantity of cocaine and large sums of cash and a phone used to arrange the transaction.
- A jury convicted Persavage of possession with intent to deliver (PWID) and conspiracy; the court sentenced him to concurrent 6–12 year terms.
- Persavage filed post‑sentence motions (including a Rule 600 speedy‑trial claim and a suppression motion), which were denied; he appealed and timely filed a Pa.R.A.P. 1925(b) statement.
- The trial court rejected Persavage’s Rule 600 challenge (delay attributed to Persavage’s mishandled drug‑court application), his suppression claim (officers had reasonable suspicion to stop the vehicle), his entrapment/sufficiency claim (jury could disbelieve defense testimony), and his prosecutorial‑misconduct claim (objection waived and, alternatively, harmless given curative instruction).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Rule 600 delay (July 17, 2013–Jan 3, 2014) | Commonwealth: delay chargeable to defendant because his pro se drug‑court application was not properly filed and thus not processed | Persavage: court failed to determine Commonwealth’s due diligence and should not charge this period to him | Court: delay chargeable to Persavage due to his failure to follow filing instructions; no Rule 600 violation |
| Suppression — vehicle stop & arrests | Commonwealth: officers had reasonable suspicion to stop Persavage’s green vehicle based on CI info, corroboration, observation of Persavage near the car, and registration check | Persavage: stop was a fishing expedition; no reasonable suspicion; also challenged arrests (later waived) | Court: stop was supported by reasonable suspicion; arrest‑claims waived for preservation defects |
| Entrapment / sufficiency of evidence | Commonwealth: evidence (phone calls, meeting, recovered cocaine matching intended sale) supports PWID and conspiracy | Persavage: CI repeatedly pressured him and coerced him into selling; entrapment established by his and girlfriend’s testimony | Court: defendant bears burden to prove entrapment; jury could disbelieve defense testimony; evidence was sufficient |
| Prosecutorial comment in closing | Commonwealth: characterization of the cocaine as trafficking was a permissible inference from evidence | Persavage: prosecutor improperly labeled him a dealer without expert testimony; requested new trial | Court: objection preserved but remedy (mistrial) not requested so issue waived; alternatively comment supported by evidence and curative jury instruction cured any prejudice |
Key Cases Cited
- Commonwealth v. Ramos, 936 A.2d 1097 (Pa. Super. 2007) (Rule 600 analysis and mechanical/adjusted run date principles)
- Commonwealth v. Hoopes, 722 A.2d 172 (Pa. Super. 1998) (standard of review for suppression appeals)
- Commonwealth v. Feczko, 10 A.3d 1285 (Pa. Super. 2010) (investigatory vehicle stops require reasonable suspicion)
- Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011) (standard for sufficiency review)
- Commonwealth v. Willis, 990 A.2d 773 (Pa. Super. 2010) (burden to prove entrapment rests with defendant)
- Commonwealth v. Brown, 134 A.3d 1097 (Pa. Super. 2016) (waiver where no curative remedy requested after prosecutorial misstatement)
- Commonwealth v. Nischan, 928 A.2d 349 (Pa. Super. 2007) (pro se filings are nullity when defendant is represented)
- Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011) (claims raised first in reconsideration motion may be waived)
- Commonwealth v. Hawkins, 701 A.2d 492 (Pa. 1997) (presumption that juries follow curative instructions)