Commonwealth v. Webster, 470 A.2d 532

Commonwealth v. Webster

470 A.2d 532

Pa.

1983

Check Treatment

*3 WIEAND, Before MONTGOMERY, McEWEN and JJ. WIEAND, Judge:

Regina Webster by jury was tried and found guilty of delivering grams of 6.65 cocaine an undercover state policeman appeal November 1981. On direct from the sentence, judgment of she contends that she entitled to *4 an arrest of judgment granted because she was immunity of by the courts York appeared New when she in that state to give testimony concerning drug other transactions before a Steuben County Jury. Grand In separate appeals, she contends that the trial court erred when it refused to dismiss two additional charging informations her (1) with conspiracy attempt and to deliver six pounds hundred of marijuana December 1980 and possession with intent to deliver of quantity marijuana found in her home to a search

pursuant by police conducted on December separate 1980. She contends that a trial on these informa- Code, violate 110 of tions will Section the Crimes 18 Pa.C.S. § 110, principles and of double Both jeopardy. appeаls of purposes argument. were consolidated for Pennsylvania On November State Police were by informed New York State Police that information acquired had of an wiretap been as result authorized on a telephone quantity New York to the effect that a of cocaine was to be delivered a New York resident to Curtis Missien, Street, 929 High Williamsport, Pennsylvania. Donald K. Trooper of the State Jury Police made an undercover visit to Missien’s home same day. Webster, found Regina living There he who was with Mis- sien, and discussed her the possibility making of future occasion, drug purchases. according On that to the evi- trial, dence produced Jury purchased grams 6.65 Regina Jury cocaine from had Although Webster. addition- thereafter, al discussions with Ms. Webster and also with Missien, no purchases additional of cocaine were made. part This have been due in may the arrest New York Bavisotta, suspected being of Robert who was New supplier York of Missien Wеbster. and 17, December Trooper Jury again On was Regina home, where discussed the purchase Webster’s he with her large quantity marijuana. occasion, of a On this he an twenty-four pounds marijuana observed estimated present was when sold to an marijuana Webster unidenti- person. fied arranged Jury third Webster to meet with Rowe, one Alfred Webster represented whom her be marijuana, source for on December After Jury large had visited the site quantity marijuana where a arrangemеnts stored and had made to purchase the mari- Webster, juana, an arrest was made Rowe and Rowe’s wife. A search of the shared by home Webster Mis- sien, pursuant conducted to warrant morning on the in the finding December resulted and seizure of *5 Troop- pounds by the earlier twenty-four marijuana seen er Jury. in two

Regina initially Webster was as defendant named complaints. criminal The first her with charged possession delivery and of cocaine on 1980. The second November complaint alleged attempt a to and an to conspiracy deliver deliver hundred to on pounds marijuana Trooper Jury six Later, December 1980. on January appellant in- charged possession was also with and possession tent to deliver found in her home on Decem- marijuana ber 22. 27, 1981, Regina

On March appeared Webster New and, York a County Jury pursuant before Steuben Grand to grant court, a immunity of transactional the New York by questions pertaining purchase drugs answerеd to the from Robert Bavisotta on November and November was not not give testimony She asked and did her sale of concerning Jury cocaine to on Novem- Trooper ber 5.

In Pennsylvania, the several charges against Regina court Webster were returned to included in were three separate informations. pre-trial Omnibus were motions (1) filed and included a motion to dismiss because of immu- nity granted New York and a motion to all consolidate charges for trial. July On the trial cоurt denied It motion dismiss. also the application denied consolidate one trial all charges against In- Webster. stead, court granted a request to consoli- in separate date trials the charges against all defendants in each involved transaction. September

On Webster tried for the sale Jury cocaine to November 1980 on case stated basis. She was Post guilty. found trial were motions of imprisonment sentence was imposed for not less than years. one nor more than three

Appellant contends that transactional immunity granted the court in New York is a bar to prosecution

for the possession and sale of cocaine in Pennsylvania. she Alternatively, argues that even if is not barred by grant York, immunity by State of New the conviction must fall because the Commonwealth failed to meet its burden of that it proving made neither direct nor indirect use of the which testimony she was compelled give before the Jury Grand New York.

Witness immunity characterized as either trans actional immunity or use immunity. Transactional immuni ty provides a immunity witness full from prosecution ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for arising crimes from transaction any concerning which the witness v. compelled to testify. See: Kastigar United States, 1653, 406 U.S. 92 S.Ct. 32 L.Ed.2d 212 denied, (1972), reh. 931, 2478, S.Ct. 33 L.Ed.2d (1972); Quatermain, United States v. 38, 613 F.2d (3rd Cir.1980), cert. 446 U.S. 100 S.Ct. (1980); L.Ed.2d Appeal, Riccobene 411- (1970). 268 A.2d immunity, Use on the other hand, prohibits the use or derivative any use of testimony compelled over a claim privilege. See: Zicarelli v. The New Jersey State Commission Investigation, 406 U.S. 472, 475-476, (1972); 32 L.Ed.2d 234 Quatermain, United States v. 40; supra Riccobene at Appeal, supra 439 Pa. at 268 A.2d at 109. Use does immunity prohibit not prosecution for all crimes aris ing out of the transaction testified to long so as the prose cution’s evidence is obtained from a source wholly indepen dent of Quater United States v. compelled testimony.1 main, supra at 40; Appeal, Riccobene supra at 412, 268 A.2d at 109.

Transactional immunity is not required in order to compel over a Fifth testimony Amendment claim privi lege against self-incrimination. “[I]mmunity from use and derivative use is coextensive with the scope the privilege against self-incrimination, and therefore is sufficient compel testimony over a claim of the privilege. While a empowered by grant only courts are statute to use immunity. See: 42 Pa.C.S. § 5947. commensurate protection must afford immunity grant it need not be broader.” privilege, that afforded States, 406 U.S. at 92 S.Ct. supra v. United Kastigar also: Zicarelli 32 L.Ed.2d See at supra Investigation, Jersey The New State Commission оf at 32 L.Ed.2d 92 S.Ct. 406 U.S. at 40; Quatermain, Ricco- supra United States at 109. Pa. at Appeal, supra bene New In Commission Murphy Waterfront Harbor, 12 L.Ed.2d 678 378 U.S. York held that the (1964);the Court of the United States Supreme requires to the United States Constitution Fifth Amendment *7 immunity a use for sovereign person only a second to afford transaction grant under a of testimony originally compelled the sovereign. recog another The basis for immunity by al sovereign of use where another has com immunity nition the is the Fifth testimony by immunizing witness pelled self-inсrimination, is privilege against Amendment which through to the the Fourteenth “fully applicable States Malloy Hogan, Amendment. v. U.S. S.Ct. Commission, Murphy L.Ed.2d 653.” v. Waterfront 678. 378 U.S. at at L.Ed.2d supra grant immunity protection A of use affords which is co-ex privilege, tensive with the of the Fifth Amendment scope is, therefore, required protect privilege. and all that is to the 439 Pa. at 268 A.2d at Appeal, supra See: Riccobene Recognition immunity by prosecuting 109. of use the sov ereign [prosecuting sovereign] “leaves the witness and thе in the same if the had substantially position as witness privilege [prior] grant claimed his the absence of a state Commission, immunity.” of v. Murphy supra Waterfront at at 12 L.Ed.2d 678. S.Ct. See 458-459, States, also: v. United 406 U.S. at Kastigar supra 212; at 32 L.Ed.2d S.Ct. United States (D.C.Cir.1975). “A of DeDiego, grant 511 F.2d privilege broader than the Fifth Amendment immunity infringe upon self-incrimination the against might [well] of another whether the Federal right sovereignty, Govern- State,

ment or another to enforce its laws.” United States supra DeDiego, by As noted the court in United v. Meyers, States (E.D.Pa.1972), F.Supp. “serious considerations of fed- eralism arise when and extent immunity to the granted a witness one impinges upon state the independent him____ power prosecute of another state to state '[N]o grantor other than the immunity has an opportunity had to elect it forego whether will the a prosecuting witness as price paying worth testimony. his And states may well differ in judgment importance as to the desirability particular Thus, a prosecuting participant wrongdoing. to state of deprive prosecute right violation of its criminal law the basis another grant state’s of immu- nity derogation would gravely be sovereignty its ” obstructive its administration Id. justice.’ at 1159 (footnote omitted) quoting United ex rel. States Catena Elias, (3rd Cir.1971), F.2d 40 reversed on other grounds, 406 U.S. 32 L.Ed.2d 341

Appellant’s argument immunity use fails immunity afford protection co-extensive conferred §1, upon an accused by Article ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Pennsylvania Constitution meritless. The privilege self-incrimi against nation guaranteed by is not Constitution *8 the guarantee broader than contained in the of Constitution Rather, United the privileges States. are identical. See and compare: Sklar, 404, Commonwealth v. 497 Pa. 413- 414, 1201, (1982); 441 A.2d Martorano, 1206 In re 464 Pa. 66, 74-75, 22, (1975); A.2d Falone, 42, In re 9, (1975); 346 A.2d Commonwealth v. McCloskey, 147, 117, 764, (1971), Pa. 277 A.2d cert. 1000, 563, (1971); 92 S.Ct. L.Ed.2d Common 315, 324-328, Kilgallen, 780, wealth v. 108 A.2d 53, 784-786 Field, Commonwealth v. 231 Pa.Super. (1974). n. 749 n. 9 Cf. State v. Miya saki, Haw. 614 P.2d 915 protect To guarantee self-incrimination against to a witness who has state, a sister in the courts of testify to compelled been suffice. immunity use will of grant and credit the full faith сontends that Appellant Penn that requires Constitution of the United States clause This argument immunity. transactional apply sylvania purport court did not the New York The order of specious. in the Commonwealth prosecution from protect appellant to prosecu from only immunity granted it Pennsylvania; authorities. tion New York required was that

Having determined before appellant’s testimony to immunity use grant only to conten appellant’s examine jury, York we grand the New to meet its burden failed tion that the Commonwealth derivative, use, no either direct or that it made establishing in New York. compelled testimony appellant’s its to establish required was The Commonwealth appel as a result any way not tainted evidence was York. “This burden testimony New compelled lant’s taint; it rather negation limited to a ... is not proof prove to duty the affirmative on the imposes from a to use is derived proposes the evidence it testi compelled of the wholly independent source legitimate ” States, supra 406 U.S. at v. United mony. Kastigar Murphy also: 32 L.Ed.2d 212. See Commission, at 79 n. supra 378 U.S. Waterfront United States 678; n. 12 L.Ed.2d at 1609 that the Common supra at 822. It seems clear DeDiego, in this case. has met its burden wealth filed complaint in a December charged Appellant of cocaine grams and sale of 6.65 possession 1980 with did not Appellant 1980. on November Trooper»Jury March grand until County jury the Steuben testify before her testimony concerned Appellant’s grand jury 1981. from Robert Bavisotta November drugs purchase testify did Although appellant 1980 and November marijuana had sold the cocaine and York that she New others, testify she did not from Bavisotta purchased *9 any was not asked about transactions or conversations between herself and Trooper Jury.

The charges against in were appellant and given Trooper initiated evidentiary support by Jury, who made direct of purchase cocaine from her Novem ber 1980. The еvidence to the support charge prove obtained, the sale was not or from directly the indirectly, immune in testimony given by appellant New York. Rath er, the evidence Jury, was elicited from had who direct knowledge of the Indeed, offense committed. although the in possession had its copy the Webster testimony County grand before the Steuben the assist jury, represented ant district the attorney who Commonwealth at previously trial had not read it. conclude, therefore,

We is appellant not entitled to discharged be on the grounds granted that she was immuni- ty New York. The conviction a sale making cocaine in Pennsylvania was entirely upon based evidence derived independently testimony given the by appellant conviction, therefore, York. New The proper.

Appellant also contends that the trial court failed to articulate sufficient reasons for the sentence. We have given examined five pages reasons the sеntencing court and find them more than adequate. Because of their length we do not them quote here. Suffice it say the court appellant’s background, considered her heavy involvement, drug her refusal to participate voluntarily in drug therapy, offense, nature appellant’s motive it, for committing and also the she fact that was the mother of two children and had cooperated law enforcement agencies the State of New York. from appeаl

Webster’s the order refusing dismiss remaining informations involves two inquiries. discrete separate The first whether a on charges trial arising from the events December and will violate Section 110 of § Code, the Crimes 18 Pa.C.S. 110. The other is whether a second trial will principles violate jeopardy double con-

175 in the Fifth Amendment of the United Consti- tained States I, 10, and Article of the Consti- tution Section tution.2 requires

Section 110 of the Crimes Code the Com all single proceeding monwealth to consolidatе known charges arising on the same conduct or from based episode separate same criminal unless court orders II, v. Hude Commonwealth 482, trials. 500 Pa. 458 A.2d v. Beatty, Commonwealth 284, 286, (1983); 177 500 Pa. 455 v. Muffley, Commonwealth 1194, (1983); A.2d 1196 493 Pa. Stewart, Commonwealth v. 32, (1981); 425 A.2d 350 493 Commonwealth v. 24, 28, 346, (1981); Pa. 425 A.2d 348 Holmes, 1015, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍(1978); 480 Pa. 391 A.2d 1017 Campana, Commonwealth v. 233, 452 Pa. 304 A.2d 432 (1973), vacated, 414 808, 73, 94 44 38 L.Ed.2d remand, Campana, Commonwealth v. (1973), 455 Pa. cert. 622, (1974), 969, 314 A.2d 854 417 U.S. Beckman, Commonwealth v.

3172, (1974); 41 L.Ed.2d 1139 Common 660, (1982); 304 A.2d Pa.Super. 450 663 Carelli, wealth v. 502, 505-506, 228, Pa.Super. 436 A.2d section, however, (1981). this a subsequent Under arising for an offense out of the same criminаl episode will not if trials separate be barred have been II, the court. See: Commonwealth v. Hude ordered supra 500 Pa. at Commonwealth v. 493, 183; 458 A.2d at Stewart, supra Common 349; 493 Pa. at 425 A.2d at Saunders, wealth v. 483 Pa. 34 n. n. A.2d Holmes, supra Commonwealth v. (1978); 480 Pa. at 540 v. Beckman, Commonwealth 3; n. n. 391 A.2d at 1017 supra Pa.Super. at 450 A.2d at 664. “The compul Campana I and II and the forth in sory joinder rules set of section 110 were provisions designed to serve two dis (1) tinct policy protect person considerations: accused pre-trial application seeking discharge jeoрar- 2. Denial of a on double dy grounds immediately appeala- is considered a "final order” Bolden, (1977). ble. 472 Pa. See: Commonwealth 373 A.2d 90 Muffley, Accord: n. Commonwealth 425 A.2d Beckman, Pa.Super. n. 1 Commonwealth v. governmental of crimes from harassment of forced being undergo successive trials for from stemming offenses episode; same criminal as a matter judicial administration and to assure un- economy, finality without duly burdening judicial repetitious process by litiga- II, supra Commonwealth Hude tion.” 458 A.2d at 180. rule is intended separate The to allow for trials whenever the trial court is satisfied justice so § requires. 1.08, Model Penal p. Code Comment at Tarver, *11 5). v. (Tent.Draft # Commonwealth See also: 467 401, 408, 539, (1976); Pa. 357 A.2d Commonwealth 542-543 Green, 142, v. 134, 493, 232 Pa.Super. (1975). 335 A.2d 497 case,

In the instant the defense moved to consoli the charges, upon date several Section 110. relying The requested Commonwealth consolidation of defendants for alleged offenses; trial purposes according opposed to it defendant, consolidation of all charges against each which required repeated would have trials of alleged each incident. The court appellant’s request denied that all charges her be against consolidated into one trial. Because the multiple defendants, who were in variously involved the different giving events rise to the several the charges, trial separate court ordered trials for each incident and in joined a consolidatеd trial all defendants in allegedly involved each offense. “It is well that established the propriety consol idating separate indictments for trial is a matter of discre with judge, tion the trial and the exercise this discretion will be reversed for manifest only abuse of discretion or prejudice injustice and clear defendant. Common Moore, 320, wealth v. 317, (1975); 463 Pa. 344 A.2d 852 Patrick, Commonwealth v. 437, 445, Pa. 416 206 A.2d rel. (1965); Banmiller, Commonwealth ex Bolish v. 298 Pa. 481 Commonwealth Ashe, rel. Spencer ex v. A.2d cert. 94 L.Ed. Morris, (1950).” Commonweаlth Pa. Hill, (1981).

A.2d Accord: Commonwealth v. (1978). 388 A.2d compare: See and 241, 418 A.2d 702 Carroll, Pa.Super. Commonwealth injustice discretion or clear no abuse There case.3 in the instant in Supreme Court Commonwealth decision of

The trial that the require finding not II, does supra, Hude II did place, In the first Hude its discretion. court abused did separate trials and directing order a court not involve trial court’s discre- exercise of the limit the purport not of the under trials Section awarding separate in tiоn that fact, Hude II observed In the Court Crimes Code. may the Commonwealth 110(l)(ii) provides “Section separate trials.... grant the court to request [And law the interests of insure that will procedure such a] the accused satis- enforcement, will be judiciary II, 500 Pa. at supra v. Hude fied.” Commonwealth omitted). the facts (citations Secondly, A.2d at 183 must holding and the thereof be unique, Hude II were There, the defendant had been facts. limited to those drug the same possession twenty counts charged drug person of that to the same deliveries repeated credibility All charges pitted period. over a two month accused seller. that of the purchaser against the alleged *12 offenses were so Therefore, alleged held that the the Court practical pur- interrelated that for logically and so similar issues of fact and law and the same poses they involved therefore, transaction or were, a of the same criminal part therefore, counts, in a trial оn three acquittal An episode.4 counts. remaining trial on the a second barred case, neither alleged the offenses were In the instant differ- only related. not involved ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍logically They nor similar transactions, appel- and different but evidence people ent remaining charges undoubtedly will on the two guilt lant’s observe, however, ruling no that the reasons for the court’s We 3. and, therefore, remaining require longer do not that the two exist separately. All other defend- chаrges against Regina Webster be tried pleas guilty. charged incidents have entered in the same ants Lee, Pa.Super. 435 A.2d 620 Compare: 4. Commonwealth persons forty apart (1981), stabbings minutes two different where episode. part of the same held not to be were be different than that on which the cocaine conviction was II, Hude In to based. contrast the different filed charges in the against appellant depend upon instant case must the credibility of different witnesses and different evidence to II, Thus, Hude prove alleged each offense. which involved facts, peculiarly unique does not that require we reverse order refusing the to the remaining charges dismiss grounds they should have been consolidated earlier, separate offense for trial.

Similarly, principles jeopardy double do not bar prosecution for the allegedly offenses committed on Decem “ 21 and ‘The jeopardy ber double clause breaks down into three rules general preclude which second trial or a punishment (1) second for the same offense: retrial for the (2) after acquittal; same offense retrial for the same of conviction; (3) fense after multiple punishment for same offense at trial. judiciary one The views these rules as of self-evident moral expressions precepts: wrong It is to retry a man for crime of which he has previously been innocent, wrong harass him prose found with vexatious cution, wrong him punish twice the same of ” Grazier, Commonwealth 622, 630-631, fense.’ 481 Pa. Mills, (1978) quoting Commonwealth v. 393 A.2d 447 Pa. 286 A.2d (emphasis omit Vitale, ted). Accord: Illinois v. Henderson, Commonwealth v. (1980); L.Ed.2d In Interest of (1978); 393 A.2d

R.R., 317 Pa.Super. 334, Maddox,

Commonwealth Pa.Super.

A.2d Appellant does not contend that charged the offenses same remaining informations are the as the offense for Rather, she has tried and argues which been convicted. she double clause jeopardy requires that all offenses *13 arising single from a criminal or episode transaction be single in a prosecuted proceeding. argument This is the view, espoused by Justice Brennan: “In my the Double Jeopardy prosecution, requires Clause in except most charges all the circumstances, at one trial join limited act, criminal single out of grow a defendant that against Swenson, v. or transaction.” Ashe occurrence, episode, (1970) 1189, 1199, L.Ed.2d 469 436, 90 S.Ct. U.S. However, omitted). Jus J., (footnote (Brennan, concurring) Swenson, Ashe v. Harlan, noted concurring tice “[i]n make explicit my I wish to opinion] the Court’s [joining way in no intimates understanding оpinion that the Court’s degree to any Clause embraces Jeopardy Double concurring in the concept reflected the ‘same transaction’ 448, Id. at Brother Brennan.” 90 S.Ct. opinion my concept adopted by transaction” was not The “same of the Court Ashe Swenson and has not majority in later decisions. adopted by Supreme been Court See: Neil, Robinson v. 35 L.Ed.2d 29 409 U.S. S.Ct. Oklahoma, concurring); Grubb v. (1973) (Brennan, J., (1972) (Brennan, J., 450, 34 L.Ed.2d 309 U.S. 93 S.Ct. dissenting); Miller v. Oregon, 405 U.S. 92 S.Ct. Duncan v. (1972) (Brennan, J., dissenting); 31 L.Ed.2d 590 Tennessee, 785, 31 L.Ed.2d 86 405 U.S. 92 S.Ct. J., Commonwealth (Brennan, See also: dissеnting). (1973), vacated, Campana, remand, on (1973), U.S. 38 L.Ed.2d Campana, Commonwealth 314 A.2d 854 (1974), cert. 41 L.Ed.2d Gosselin, State v. 117 N.H. 370 A.2d 264 clear, therefore, It seems appellant’s conviction not a to á selling separate cocaine on November 5 is bar for the offenses committed on De- marijuana 21 and 22. Appellant’s cember conduct on November 21 and rise to gave separate December December require presentation distinct offenses which of different Appellant evidence order to obtain convictions. selling directly Trooper convicted of cocaine Jury complete 5. This offense was on that date. The November charges attempt pounds to deliver 600 conspiracy occasion, occurred on another at a different marijuana place *14 alleged and involved an conspiracy with and assistance from persons. Finally, additional the charge pertaining to the twenty-four pounds marijuana resulted from the execu- of а appellant’s tion search warrant home on December 22. The Trooper mere fact that Jury’s undercover work in allowing was instrumental the Commonwealth to discover prove drug several violations not sepa- did render the a part rate violations same offense for jeopar- double purposes. dy

The judgment sentence for selling cocaine is affirmed. The order refusing to dismiss containing informations sepa- rate marijuana charges is also affirmed. J.,

MсEWEN, filed a concurring opinion. McEWEN, Judge, concurring: While the majority opinion a fine and expres careful view, I do agree sion not interpretation of the majority that the decision our Supreme Court in Com II, monwealth v. Hude 458 A.2d 177 narrowly must be I perceive construed. Hude II not as a mere dalliance with proposition as a but declaration of commitment to principle guard our courts must against prosecutorial harassment —whether effected by oversight or ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍The by design. lеgislature certainly pro so it nounced when enacted sections 109 through 112 of the §§ Code, Crimes Pa.C.S.A. and this court has itself assumed such See duty. Abbott, Commonwealth v. 319 Pa.Super. 466 A.2d 644 Commonwealth v. Mascaro, Pa.Super. 394 A.2d 998 Nor does this stance of interpretation broad either offend principles ignore fairness or demands since, of the pragmatic, under section the prosecution only need applica make to the for permission tion court to conduct prose successive event, cutions. In any to this I subject solely exception, join in the opinion of the majority and affirm the judgment sentence as refusing well as the order the dismissal of certain informations.