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HomeMy WebLinkAbout97-0818 criminalCOMMONWEALTH OF : IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA : CUMBERLAND COUNTY, PENNSYLVANIA Vo : NO. 97-0818 CRIMINAL ROBERT A. BANKS, Defendant IN RE: DEFENDANT'S POST-TRIAL MOTION ORDER OF COURT AND NOW, ~ ~~ 1999, after careful consideration of all issues Defendant's Post-Trial Motion is denied. By the Court, Jaime M. Keating, Esquire Chief Deputy District Attorney For the Commonwealth Samuel C. Stretton, Esquire 301 S. High Street P.O. Box 3231 West Chester, PA 19381 For the Defendant COMMONWEALTH OF IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA : CUMBERLAND COUNTY, PENNSYLVANIA V. : NO. 97-0818 CRIMINAL ROBERT A. BANKS, Defendant IN RE: DEFENDANT'S POST-TRIAL MOTION OPINION HOFFER, P.J.: In this opinion, the court shall address all issues raised in defendant's post tdal motions. The defendant, Robert A. Banks, was involved in a motor vehicle accident which resulted in criminal charges being filed against him. On March 13, 1998, the defendant was convicted of (1) ddving under the influence, a violation of 75 Pa. C.S.A. §3731; (2) homicide by vehicle while ddving under the influence, a violation of 75 Pa. C.S.A. §3735; (3) homicide by vehicle, a violation of 75 Pa. C.S.A. §3732; (4) involuntary manslaughter, a violation of 18 Pa. C.S.A. §2504; and (5) vadous summary offenses related to his operation of the vehicle. A jury tdal was held March 9 through March 13, 1998. The facts, elicited at tdal, which gave dse to defendant's conviction, follow. During the evening of March 26, 1997, witnesses saw one person, alone, in a Hyundai Accent ddving south on Interstate-81 in Silver Spdng Township, Cumberland County at an extremely high rate of speed? One witness testified that he, the witness, was travelling at approximately 75 The defendant's cousin, Earl Arter, was the owner of the Hyundai and he testified that he loaned the car to the defendant that same day. NO. 97-0818 CRIMINAL miles per hour when the Hyundai "flew" by in the left hand lane. The Hyundai was seen swerving between the lanes of traffic, passing cars. The driver of the Hyundai then lost control of the vehicle. The Hyundai nearly hit other cars in the southbound lanes. Two witnesses had to slam on their brakes to avoid collisions. The Hyundai crossed over the median, launched into the air, sheared off the roof of a vehicle travelling north on 1-81, killing the driver, and careened down a steep embankment on the far side of the northbound lanes. When the Hyundai came to rest, witnesses saw the defendant lying next to the vehicle. Witnesses went down the embankment to help the defendant. They asked him if anyone was with him; he said yes, but no other person was seen. At trial, witnesses, who drove or rode in southbound cars, testified that they saw only one person in the Hyundai at the time the accident occurred. Paul Jacobsen-Rains, a passenger in a southbound car, testified that, "[f]rom what I could tell, yes, that there was only one person in that car." (Notes to Trial Testimony, hereinafter "N.T.", Vol. I, p. 106). Jenny Clouse, driver of a vehicle nearly hit by the Hyundai, told the jury, "1 saw one individual in the driver's seat." (N.T., Vol. II, p. 186). A northbound car, driven by Nelson Dougherty, Jr., was hit by the Hyundai. Mr. Dougherty died at the scene of severe head trauma caused when the Hyundai tore the roof from his car. Forensic personnel had to identify Mr. Dougherty from his dental records, because his head was so mangled by the collision. 2 NO. 97-0818 CRIMINAL Soon after the crash, fire and rescue workers arrived on the scene. Witnesses told them that the defendant said another person was with him at the time of the accident. Firefighters searched the woods but found no one. The defendant remained seated next to the Hyundai and Timothy Knepp, Hampden Township Fire Chief, approached him. Chief Knepp saw no apparent injuries on the defendant but noticed the odor of alcohol. The defendant told Chief Knepp that he was driving the Hyundai at the time of the accident and that no one else was with him. The defendant was then hoisted up the embankment. When the defendant reached the top, he again claimed that another person was with him at the time of the accident. When the first police officer, Corporal Timon Moore of the Pennsylvania State Police, arrived on the scene, he first confirmed that Mr. Dougherty was deceased and checked on the defendant's car. The corporal then spoke with the defendant. The defendant told him that he was not the driver of the Hyundai but that "Anthony Mower" was the driver. The corporal noted that the defendant had an odor of alcohol and slurred speech. The corporal then went in search of the second "mystery" man. Again, no one was found. The corporal returned to speak with the defendant and he noticed a clearer smell of alcohol and saw that defendant's eyes were glassy. The defendant was taken to the hospital and a blood sample was drawn one hour and fifteen minutes after the accident. Testing revealed that the defendant's blood alcohol content was .12% at the time the sample was taken. Several 3 NO. 97-0818 CRIMINAL troopers attempted to interview the defendant at the hospital. All witnessed the defendant exhibiting classic signs of intoxication. The troopers testified that they believed the defendant to be incapable of safe driving. Early in the morning of March 27, 1997, within hours of the crash, the defendant's mother received a call from the hospital informing her that her son was a patient. At 2:30 a.m., Mrs. Banks arrived at the hospital. She found her son, the defendant, lying in bed, wearing a neck brace. He had a red knot-like bruise on his head. He was hooked up to an I.V. and had a tube down his throat. The defendant was extremely upset and told his mother that he wanted to go home. Mother agreed and the defendant checked himself out of the hospital and returned home with his mother. On March 28, 1997, the defendant was arrested and taken into custody. The arresting officers took the defendant back to the hospital because he was complaining of pain. At the hospital, a trooper overheard the defendant tell his girlfriend, "1 didn't mean to hurt anybody." (N.T., Vol. III, p. 598). As part of the investigation, Trooper Palmero of the Pennsylvania State Police, an accident reconstructionist, was called to the accident scene. Using calculations based upon the coefficient of friction and marks left on the roadway, the trooper determined that the defendant's vehicle was travelling at 89 miles per hour when he lost control. The trooper found no mechanical defects in the car. He 4 NO. 97-0818 CRIMINAL determined that the defendant's vehicle crashed through the windshield of Mr. Dougherty's car and killed him.2 At trial, the defendant stipulated that his blood alcohol content was .12% at the time of testing. The Commonwealth's expert in forensic toxicology, Dr. G. Thomas Passananti, testified that, within a reasonable degree of medical certainty, the defendant's blood alcohol content was .14% at the time of the accident. The jury convicted the defendant of driving under the influence, homicide by vehicle while driving under the influence, homicide by vehicle, and involuntary manslaughter. The defendant appeared for sentencing on April 14, 1998. The court sentenced the defendant to 3% to 7 years in the state correctional facility for homicide by vehicle while driving under the influence and 2 to 5 years for homicide by vehicle. The sentences were to run consecutively. The driving under the influence charge merged with the homicide by vehicle while driving under the influence charge and the involuntary manslaughter charge merged with the homicide by vehicle charge. But the homicide by vehicle while driving under the influence charge did not merge with the homicide by vehicle charge. Therefore, no additional sentence was imposed. Upon the defendant's arrest, he was represented by Allen Welch, Esquire. A conflict arose and Mr. Welch was forced to withdraw. Defendant obtained new counsel, Patrick Lauer, Esquire, who represented him at trial. Mr. Lauer's 2 Tissue from Mr. Dougherty's body was found on the underside of the Hyundai. 5 NO. 97-0818 CRIMINAL representation of the defendant concluded after sentencing. William Braught, Esquire, of the Cumberland County Public Defender's Office filed a post trial motion on the defendant's behalf, April 24, 1998. On May 7, 1998, the Court issued two orders: (1) refusing defendant's motion to vacate sentence and be resentenced and (2) granting defendant's request for trial transcripts and allowing time after the transcripts were issued to file a supplemental post sentence motion containing claims of ineffectiveness of counsel. On June 8, 1998, the Court vacated the order refusing defendant's motion to vacate sentence and be resentenced and deferred all decision on defendant's post sentence motion until a supplemental post sentence motion was filed. On August 20, 1998, defendant's current counsel, Samuel C. Stretton, entered his appearance on behalf of defendant. Stretton immediately filed for an extension of time to file the supplemental post sentence motion. Stretton's motion was timely filed on September 28, 1998. On September 30, 1998, Stretton filed a motion to transcribe the opening and closing statements and for time to file an amendment to defendant's supplemental post sentence motion once he received the transcripts. The amendment was filed January 22, 1999. The Court, at the request of defendant, conducted an ineffectiveness of counsel hearing on March 5 and 19, 1999. At the conclusion of the hearing, Stretton again asked for extra time to submit a follow-up brief due to his out-of-state trial sct~edule. He was given until June 26, 1999 to file the brief and the Commonwealth was given time to respond. At this time, the record is complete. 6 NO. 97-0818 CRIMINAL This opinion addresses all issues raised in the complete series of motions and briefs filed by defendant. Discussion The defendant's supplemental and amended supplemental post trial motions incorporated the initial post trial motion filed by the Cumberland County Public Defender's Office. The issues raised in all three motions are as follows: (1) The verdict was against the weight of the evidence. (2) There was insufficient evidence to support the verdict. (3) The Commonwealth erred in disposing of the Hyundai before defendant was given access to the vehicle to conduct tests and prior counsel were ineffective for failing to secure the preservation of the vehicle. (4) The Commonwealth erred in bringing out the testimony of defendant's refusal to answer police questions and trial counsel was ineffective for failure to object at the time the testimony was heard. (5) The Commonwealth erred in withholding possibly exculpatory evidence of boots and/or sneakers found in and around the Hyundai at the accident scene; trial counsel was ineffective for continuing to admit that defendant was the driver after the possibly exculpatory evidence was revealed; and the trial court 7 NO. 97-0818 CRIMINAL erred in allowing hearsay testimony from a police officer concerning the ownership of the boots and/or sneakers. (6) Trial counsel was ineffective for not preserving for appeal the issue of references to defendant being in jail and being untruthful and the trial court erred by not granting a mistrial. (7) The trial court erred and trial counsel was ineffective when jurors affiliated with Mothers Against Drunk Driving were accepted on the jury panel. (8) The trial court erred and trial counsel was ineffective when juror #42, who claimed bias against those who drive in excess of the speed limit, was seated on the panel. (9) The trial court erred and trial counsel was ineffective for failing to object when an alternate juror sat with the panel in deliberations. (10) The trial court's instructions to the jury were not an accurate reflection of the law. (11) The trial court abused its discretion by ordering consecutive sentences. (12) Improper and prejudicial comments were made by the prosecution during opening and closing statements and trial counsel was ineffective for failing to object or properly preserve the issue for appeal. 8 NO. 97-0818 CRIMINAL (13) The District Attorney committed unfairly prejudicial prosecutorial misconduct by initiating contact with the defendant without the knowledge of the defendant's attorney. Because the defendant has alleged numerous incidents where he believes the trial court or the Commonwealth committed error and his counsel was ineffective, we will set out the ineffective assistance of counsel standard here. This standard shall be applied to all of the defendant's ineffectiveness of counsel claims. At the outset, it is important to note that counsel's representation is presumed to be effective. Commonwealth v. Clark, 551 Pa. 258, 267, 710 A.2d 31, 35 (1998) (citations omitted). In order to successfully present an ineffectiveness of counsel claim, a defendant must demonstrate three things: (1) counsel's conduct, by act or omission, was legally unsound; (2) counsel had no reasonable basis to believe that such conduct would effectuate the client's interest; and (3) the conduct produced an adverse effect on the results of the proceedings. Id. (1) and (2): Weight and Sufficiency of the Evidence Defendant argues that the evidence presented at trial was insufficient to support the verdict and that the verdict was against the weight of the evidence. Because of the close relationship between these two allegations, they will be addressed together. 9 NO. 97-0818 CRIMINAL In testing the sufficiency of evidence, a court must view all of the evidence in a light most favorable to the verdict winner, the Commonwealth, and determine if that evidence is sufficient to support a finding of guilt beyond a reasonable doubt. Commonwealth v. Whiteman, 336 Pa. Super. 120, 124, 485 A.2d 459, 461 (1984). In making an insufficiency claim, a defendant argues that there was not enough evidence to convict him. When ruling on whether the verdict was against the weight of the evidence or not, a trial court presupposes that there was sufficient evidence to convict but questions whether the evidence was so untrustworthy that a conviction based upon such evidence is reliable. Commonwealth v. Gaskins, 692 A.2d 224, 228 (Pa. Super., 1997). A new trial should be awarded only when the jury's verdict is so against the weight of the evidence that one's conscience is shocked by the outcome and the only fair result would be to give a defendant a new trial. Commonwealth v. Marinelli, 547 Pa. 295, 310, 690 A.2d 203, 211 (1997). The trial court must use its discretion in determining whether to grant a new trial because the verdict was against the weight of the evidence and the court's decision to deny a request for a new trial will only be overturned upon a showing of abuse of discretion. Commonwealth v. Rucci, 543 Pa. 261, 276, 670 A.2d 1129, 1137 (1996). A. Driving Under the Influence To successfully prove a defendant guilty of a violation of 75 Pa. C.S.A. {}3731, driving under the influence, the Commonwealth must prove beyond a 10 NO. 97-0818 CRIMINAL reasonable doubt that the defendant was operating a vehicle while under the influence of alcohol to a degree which rendered him incapable of safe driving. Commonwealth v. Feathers, 442 Pa. Super. 490, 500-01,660 A.2d 90, 95 (1995). In the case at bar, sufficient and credible evidence was presented by the Commonwealth to support the charge. Witnesses testified that defendant was the driver of the Hyundai. Fire Chief Knepp and a number of Pennsylvania State Police Troopers testified that defendant was under the influence to the point that he was incapable of safe driving. They smelled alcohol on his breath and noticed that his eyes were glassy. Thus, the evidence presented was both of ample weight and sufficient enough to support defendant's conviction. B. Homicide by Vehicle While Driving Under the Influence- In order to successfully prosecute the crime of homicide by vehicle while driving under the influence, a violation of 75 Pa. C.S.A. {}3735, the Commonwealth must demonstrate "(1) a driving under the influence conviction; (2) the death of another person; and (3) that the death was a direct result of driving under the influence." Commonwealth v. Caine, 453 Pa. Super. 235, 239, 683 A.2d 890, 892 (1996). Here, defendant was convicted of driving under the influence. Mr. Dougherty died as a result of the collision between his car and the defendant's. If it were not for defendant's inability to drive safely, as a result of consumption of alcohol, the accident would not have occurred. As a result of defendant's driving while under the influence of alcohol, Mr. Dougherty died. Thus, the elements of 11 NO. 97-0818 CRIMINAL homicide by vehicle while driving under the influence were sufficiently proven with credible evidence. C. Homicide by Vehicle In order to prove that a defendant committed homicide by vehicle, in violation of 75 Pa. C.S.A. {}3732, the Commonwealth must prove beyond a reasonable doubt that defendant violated a provision of the Motor Vehicle Code and that this violation was a direct and substantial factor in the victim's death. Commonwealth v. Francis, 445 Pa. Super. 353, 357, 665 A.2d 821, 823 (1995). The Commonwealth must also demonstrate that the fatal result was not extraordinary or remote and that the defendant was criminally negligent or reckless. Id. The Superior Court has previously held that driving 85 miles per hour, losing control of the vehicle, and crossing the center line is a gross deviation from the standard of care required of reasonably prudent drivers in like circumstances. In the Interest of Hyduke, 371 Pa. Super. 380, 538 A.2d 66 (1988). In the case at bar, the court heard testimony that defendant was driving his vehicle at approximately 89 miles per hour at the time he lost control, crossed the median and struck Mr. Dougherty's car, killing him. These violations of the vehicle code were the direct cause of Mr. Dougherty's death. Sufficient and credible evidence was presented to justify defendant's conviction. D. Involuntary Manslau.qhter To prove beyond a reasonable doubt that a defendant committed involuntary manslaughter, in violation of 18 Pa. C.S.A. {}2504, the Commonwealth must 12 NO. 97-0818 CRIMINAL demonstrate that the defendant violated a provision of the Motor Vehicle Code in a reckless or grossly negligent manner and that the victim's death was a direct result. Commonwealth v. Houtz, 496 Pa. 345, 348-49, 437 A.2d 385, 387 (1981). In the case sub judice, defendant was seen weaving in and out of traffic at a high rate of speed. He lost control of the vehicle and struck and killed Mr. Dougherty. It was determined that defendant was intoxicated at the time of the accident. It was later discovered that defendant did not have a driver's license nor had he ever applied for a license. Defendant committed multiple egregious violations of the Motor Vehicle Code. His behavior was both reckless and grossly negligent. The vehicle code violations directly resulted in Mr. Dougherty's death.Clearly there was sufficient, credible evidence to support defendant's conviction. (3): Disposal of the Vehicle The defendant claims unfair prejudice and a due process violation arising out of the Commonwealth's disposal of the Hyundai before he had a chance to inspect the car and conduct tests to determine if any defects were present. The defendant further argues that his prior counsel, Mr. Welch and Mr. Lauer, were ineffective for failing to secure the car for defense inspection. In order to demonstrate a violation of due process when evidence is lost or made unavailable, a defendant must show bad faith on the part of the police. Arizona v. Youn,qblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). Pennsylvania requires that a defendant demonstrate actual prejudice due to the inability to inspect a vehicle. Commonwealth v. Hess, 446 Pa. Super. 222, 229, 13 NO. 97-0818 CRIMINAL 666 A.2d 705, 708 (1995). In Hess, a defendant was involved in a motor vehicle accident that resulted in him being tried and convicted of homicide by vehicle while driving under the influence. Id. At 226, 666 A.2d at 706-07. On appeal, he argued that his due process rights were violated because the cars involved were destroyed before he had a chance to examine them and that all testimony and other evidence regarding the vehicles should have been excluded. Id.__~ at 228-29, 666 A.2d at 708. The Superior Court held that the defendant did not show actual prejudice and his argument failed because the Commonwealth did provide the defendant with copies of all of its evidence regarding the vehicle and the defendant was able to present an expert to support his defense. Id. at 229, 666 A.2d at 708.3 In the case at bar, defendant's vehicle was destroyed before any expert could examine it. Although unfortunate, the defendant did not suffer undue prejudice because the vehicle was destroyed. As noted by his counsel, defendant received all evidence the Commonwealth had concerning the Hyundai. He has not shown any examples of bad faith on the part of the police and/or the Commonwealth. The defendant's argument on this point is without merit. The defendant's claim that his prior counsel provided ineffective assistance because they failed to secure the Hyundai for inspection also fails. Applying the standard for ineffective assistance of counsel, it is clear that defendant's counsel were not ineffective. Although they failed to secure the vehicle for examination 3 The defendant presented this case to the court but argues that, despite the factual similarities, his case is different because there was specific testimony by Commonwealth 14 NO. 97-0818 CRIMINAL without justification, defendant, as discussed above, did not suffer undue prejudice by this omission. Counsels' conduct did not have an adverse effect on the outcome of the trial. (4): Testimony of Defendant's Refusal to Answer Question-~ Defendant argues that he was unfairly prejudiced and his due process rights denied because the Commonwealth erred in bringing out testimony of the fact that the defendant did not cooperate with law enforcement and refused to answer questions given him at the hospital. Defendant further alleges that his counsel was ineffective for failing to object at the time the testimony was presented. Defendant claims that the Commonwealth unfairly used his post-arrest silence to prejudice the jury. The Commonwealth asserts that it presented only defendant's pre-arrest silence. The use of a defendant's pre-arrest silence does not violate his Fifth or Fourteenth Amendment rights. Jenkins v. Anderson., 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). Pennsylvania follows the same rule that pre-arrest silence may be used to impeach a defendant. Commonwealth v. Monahan, 378 Pa. Super. 623, 549 A.2d 231 (1988). Upon thorough review of the record, we agree with the Commonwealth that only defendant's pre-arrest silence was presented to the jury. Trooper Kevin Fink told the jury that defendant would not answer most of his questions, using the responses "1 don't know" and "1 don't remember". (N.T., Vol. III, p. 413). A witnesses concerning their investigations of the vehicle. 15 NO. 97-0818 CRIMINAL complete reading of the Trooper's testimony reflects that he was referring to defendant's pre-arrest silence? Therefore, defendant was not unfairly prejudiced when testimony of his pre-arrest silence was presented. Because defendant's rights were not violated when the Commonwealth presented testimony of his pre- arrest silence, defendant's trial counsel had no duty to object when the evidence was presented. Applying the standard for ineffectiveness of counsel, it is clear that defendant's claim is without merit. (5): The Commonwealth's Withholding of the Boots and/or Sneakers Defendant claims that the Commonwealth committed prejudicial error by withholding evidence of boots and/or sneakers, found at the scene, in violation of its duty to turn over all exculpatory evidence. Defendant further alleges that the court erred in allowing hearsay testimony from the Commonwealth concerning the boots and/or sneakers. Defendant's final allegation on this topic is that his trial counsel was ineffective for stipulating that he was the driver of the Hyundai. If the boots and/or sneakers evidence can be characterized as exculpatory, the Commonwealth has violated the terms of Pa. R. Crim. P. 305 which requires the Commonwealth to turn over "[a]ny evidence favorable to the accused which is material either to guilt or to punishment, and which is within the possession or control of the attorney for the Commonwealth." Pa. R. Crim. P. 305(B)(1)(a). Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1964), reflects the Trooper Fink's testimony can be found in N.T.,Vol. III, pp. 408-66. 16 NO. 97-0818 CRIMINAL constitutional standard that all exculpatory evidence must be turned over to a defendant and serves as the support for the existence of Pa. R. Crim. P. 305. The Commonwealth did not submit the boots and/or sneaker evidence to defendant before trial. The Commonwealth failed to do so because the evidence did not appear to be exculpatory? At the scene of the accident, defendant told some people that he was the driver of the Hyundai and others that he was not. Witnesses testified that only one person was in the Hyundai. Police and rescue personnel conducted an extensive search for a second person and no one was found. That same night, police contacted the true owner of the Hyundai, defendant's cousin Earl Arter, Jr., and asked him about the boots and/or sneakers. (N.T., Vol. II, p. 275). Mr. Arter told the officer that the shoes were his. (N.T., Vol. II, p. 276). The information about the shoes was relayed to the jury through testimony from Corporal Moore. The Commonwealth did not err in failing to submit the evidence to the defendant. Before trial, the Commonwealth continued to submit discovery to the defendant. The boots and/or sneakers evidence was missed because it was neither exculpatory nor material. The Commonwealth committed no error. After Corporal Moore presented the boots and/or sneakers evidence, the Commonwealth's attorney, defense counsel and Corporal Moore met with Mr. 5 It appears that the Commonwealth's attorney was as surprised by the evidence as the defense. However, this fact is irrelevant because the evidence came from a Commonwealth witness and therefore we will assume it was in the control of the Commonwealth's attorney. 17 NO. 97-0818 CRIMINAL Arter. Mr. After told the group that he did not remember saying that the boots and/or sneakers were his. A conference was held in the judge's chambers to discuss the shoe evidence. While there, the district attorney and Mr. Lauer agreed to present a stipulation to the jury. It stated that Mr. Arter did not remember talking to the police about the shoes and that he does not remember owning shoes of such a description. Defendant's counsel moved for a mistrial based upon the admission of Corporal Moore's testimony and the fact that the Commonwealth had not turned over the evidence to the defendant. At the conference, held in chambers, the court refused to grant a mistrial? The defendant does allege that the court erred when it allowed the Corporal to testify about the contact between the police and Mr. Arter. Mr. Lauer objected to the admission of this testimony based on hearsay. (N.T., Vol. II, p. 275). The court allowed the testimony because it came from the course of the Corporal's investigation and he could be recalled later if necessary. (N.T., Vol. II, p. 276). Defendant argues that the court committed prejudicial error by admitting the testimony. It is well established in Pennsylvania that certain out of court, hearsay. statements are admissible if they are used to explain a course of police conduct. Commonwealth v. Paisa, 521 Pa. 113, 117, 555 A.2d 808, 810 (1989). These 6 Defendant has not asserted that the court committed error when it failed to grant a mistrial on this point. 18 NO. 97-0818 CRIMINAL statements must not be offered for their truth but to show information upon which the police acted. Id. Corporal Moore's testimony about the shoes did not come in to prove that the boots and/or sneakers were Mr. Arter's. The Commonwealth agreed to a stipulation to the contrary, stating that Mr. Arter remembers neither speaking to the police nor owning such shoes. The testimony was admitted to explain the course of the police investigation. The police had conflicting reports about a second person in the Hyundai. An extensive search was conducted but no one was found. Speaking with Mr. Arter gave further confirmation to the police that no second passenger would be found and they could stop the search. Defendant's trial strategy, formulated with his attorney, was focused on defeating the driving under the influence charges in order to secure a lighter sentence and emphasizing to the jury that he was not impaired while driving. At trial, defendant's counsel stipulated that he was the driver of the vehicle. (N.T., Vol. II, p. 193-94). Defendant now complains that his counsel was ineffective for entering this stipulation, that the stipulation was against his wishes and that the shoe evidence highlights his counsel's ineffectiveness in forming a defense because it gave credence to the alternative theory that there was another driver. At the ineffectiveness of counsel hearing, held before this court on March 5 and 19, 1999, trial counsel testified that the trial strategy always involved admitting that the defendant was the driver because the bulk of the evidence presented pointed to him as the driver. (N.T., Ineffectiveness of Counsel Hearing, p. 116). 19 NO. 97-0818 CRIMINAL Mr. Lauer produced a letter, written January 16, 1998, sent to defendant's mother, Kathleen Banks, and carbon copied to defendant, in which he outlined the trial strategy. (N.T., Ineffectiveness of Counsel Hearing, p. 116). Defendant was informed of and agreed with the trial strategy, and knew, well in advance of trial, what it would be. Applying the ineffectiveness of counsel standard, Mr. Lauer cannot be deemed ineffective for his use of the stipulation. After an exhaustive search, no second person was found at the accident scene. Defendant told some people he was the driver of the Hyundai. Witnesses reported seeing only one person in the Hyundai at the time of the accident. The evidence pointed to the fact that defendant was the driver. Defense counsel made a reasonable decision, with which defendant agreed, to stipulate to defendant's status as the driver. Mr. Lauer was not ineffective for entering into the stipulation. ¢6): References to Defendant Being In Jail and Untruthful Defendant requests a new trial based on his claim that references to his being in jail and being untruthful severely prejudiced the jury. Defense counsel stated that the defendant was incarcerated. (N.T., Vol. I, p. 60). Defendant claims defense counsel was ineffective for making the statement. Officer Gilbert stated that the defendant lied when talking to investigators. (N.T., Vol. III, p. 472, 473). Defense counsel requested a mistrial upon Gilbert's statement. The trial court denied the mistrial request. Defendant claims the trial judge committed prejudicial error by not granting a mistrial. Officer Joynes said police reports indicated other 20 NO. 97-0818 CRIMINAL officers did not believe the defendant. (N.T., Vol. III, p. 609, 610). Trial counsel made an objection to Joynes's statement, but did not make a motion for mistrial. Defendant claims that trial counsel was ineffective for not moving for a mistrial. A mistrial should be granted when the jury may reasonably infer from the testimony that the accused had engaged in prior criminal activity. Commonwealth v. Gaerttner, 335 Pa. Super. 203, 228, 484 A.2d 92, 106, (1984). A mistrial is required when an incident is of such nature that its unavoidable effect is to deny the defendant a fair trial. Commonwealth v. Hernandez, 498 Pa. 405, 415, 446 A.2d 1268, 1273 (1982). A trial judge is in the best position to observe the atmosphere in which a trial is being conducted and to determine whether a statement in the heat of trial by counsel or a witness has a prejudicial effect on the jury. Clark v. Hoerner., 362 Pa. Super. 588, 596, 525 A.2d 377, 381 (1987) (citations omitted). Whether to grant or deny a motion for mistrial, therefore, must necessarily rest primarily in the discretion of the trial court. Id. (citations omitted). In the present case, although defense counsel stated that the defendant was incarcerated, the statement did not infer that the defendant engaged in prior criminal activity: "1 told you in voir dire, he is in Cumberland County Prison on these charges." (N.T., Vol. I, p. 60) (emphasis added). Thus, defense counsel's statement did not prejudice the jury. The two police officers' statements of defendant's untruthfulness were not of such nature that they unavoidably resulted in denying the defendant a fair trial. The trial judge appropriately exercised his discretion to determine that these 21 NO. 97-0818 CRIMINAL statements did not have a prejudicial effect on the jury. Thus, there was no ineffectiveness of counsel nor did the trial judge commit prejudicial error in relation to statements made by the police officers. {7): Jurors Affiliated with MADD Defendant claims that trial counsel was ineffective for failing to move for cause and/or not using peremptory challenges to strike jurors who were members of or contributors to Mothers Against Drunk Driving (MADD). Defendant claims that the trial court erred in allowing such jurors on the jury. Counsel is presumed effective; defendant has the burden of proving otherwise. Commonwealth v. Hancarik, 534 Pa. 435, 445, 633 A.2d 1074, 1079 (1993). "The decision to strike for cause is within the discretion of the trial court and will not be disturbed absent an abuse of that discretion," Commonwealth v. Fisher, 545 Pa. 233, 249, 681 A.2d 130, 137 (1996). Abuse of discretion is defined as "the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill will or partiality as shown by the evidence of the record." Commonwealth v. Kubiac, 379 Pa. Super. 402, 409, 550 A.2d 219, 223 (1988) (citations omitted). A juror should be excluded for cause if he or she gives an answer in voir dire indicating a lack of impartiality, or where prejudice should be presumed because the juror has a close familial, financial, or situational relationship with any of the parties, counsel, victims or witnesses. Commonwealth v. Stamm, 286 Pa. Super. 409, 415-16, 429 A.2d 4, 7 (1981) (citations omitted). 22 NO. 97-0818 CRIMINAL The record shows that one member of the jury had once belonged to MADD in Massachusetts. (N.T., Vol. I, p. 29-30). When asked whether such prior affiliation would affect the prospective juror's impartiality in this case, the prospective juror responded that it would not. Three other final jury members had contributed to MADD, and indicated in voir dire that they could still be fair. (N.T., Vol. I, p. 58-59). Defendant claims that the prospective jurors should have been excluded for cause or been removed by peremptory challenge because of their relationship with MADD. Defendant alleges that these prospective jurors were prejudiced because of their relationship with MADD, although the jurors clearly indicated they could be fair. In this case, the jurors who had once belonged to or had contributed to MADD did not have such a close relationship with MADD that the trial judge should have presumed them unable to render a fair verdict. Because the prospective jurors had indicated they could be fair and they did not have a close relationship with MADD, counsel was not ineffective for failing to make for cause objections. Neither was counsel ineffective for failing to use peremptory challenges to have the MADD affiliated jurors removed. Counsel made peremptory challenges by crossing names off of the list of prospective jurors. The record does not reflect counsel's reasoning in exercising peremptory challenges. There is no basis to the claim that counsel was ineffective for failing to make peremptory challenges to the MADD affiliated jurors. 23 NO. 97-0818 CRIMINAL The trial judge did not err in allowing prospective jurors with MADD affiliations on the jury. "The trial judge must interpret the demeanor of all potential jurors to evaluate their ability and willingness to render a fair verdict according to the evidence presented." Commonwealth v. Chambers, 546 Pa. 370, 393, 685 A.2d 96, 107 (1996) (citations omitted). In voir dire, the trial judge asked those prospective jurors with MADD affiliations whether they could be fair, and found them to be appropriate jurors when they indicated they could do so. The trial judge also clearly asked individual jurors whether they would be able to reach a decision based solely on the evidence, uninhibited by any preconceived notions or associations. (N.T., Vol. I, p. 30). When the trial judge gave leave to any prospective jurors who believed they could not reach a fair verdict in this case, none responded (N.T., Vol. I, p. 30). In this case, the jurors who had previously belonged to or contributed to MADD did not have such a close relationship with MADD that the trial judge should have presumed them to be unable to render a fair verdict. After the prospective jurors clearly indicated they could be impartial, the trial judge correctly allowed them on the jury. There is no evidence in the record to suggest that the trial judge abused his discretion. {8): Juror #.42 and Stated Bias Against Speedinp Defendant claims that the trial court erred and trial counsel was ineffective when juror #42, who claimed bias against those who drive in excess of the speed limit, was seated on the panel. However, whether defendant was speeding was not a contested issue at trial. In the cross-examination of Commonwealth's 24 NO. 97-0818 CRIMINAL witness Trooper Palmero, defense counsel admitted by implication that defendant was travelling "in the Iow eighties." (N.T., Vol. II, p. 333). Defense counsel implied that DUI, not sPeeding, was at issue in the case. (N.T., Vol. II, p. 333). Defense counsel later admitted that defendant was travelling "in the Iow eighties" and that speed was not a concern of the defense counsel, "[j]ust because my client's vehicle went into a yaw in the Iow eighties, that speed alone is not what, in fact, caused the yaw." (N.T., Vol. II, p. 365). Defense counsel elicited from defense witness Thomas Lacek that Defendant was travelling in the Iow eighties. (N.T., Vol. II, p. 363). (9): Alternate Juror Seated with Panel During Deliberations Defendant claims that the trial judge allowed an alternate juror to sit with the panel during deliberations. Defendant is mistaken; there is no basis whatsoever in the record for this assertion. The alternate juror in this case was individually sequestered from the jury and remained under the trial judge's supervision. The altemate juror necessarily heard the trial judge's charge to the jury, as well as the re-issuance of instructions for Homicide by Vehicle and Involuntary Manslaughter. (N.T., Vol. IV, p. 785). However, the alternate did not join the jury for deliberations at any point. (10): Jury Instructions Defendant claims that the trial court incorrectly stated the law in charging the jury. Defendant claims that counsel was ineffective for failing to object to the 25 NO. 97-0818 CRIMINAL instructions as given by the trial court. "The charge to the jury must clearly and completely advise the jury of the law as it pertains to their resolution of the case before them." Commonwealth v. Thompson, 543 Pa. 634, 645, 674 A.2d 217, 223 (1996). The trial court has discretion in choosing the manner in which the jury is so advised. Id. (citations omitted). The trial court is not required to deliver the charge within a prescribed pattern. Id. The trial court has broad discretion in phrasing jury instructions, so long as the instructions adequately reflect the law. Commonwealth v. Gibson, 547 Pa. 71, 91, 688 A.2d 1152, 1162 (1997), cert. denied, U.S. , 118 S. Ct. 364, 139 L.Ed.2d 284 (1997). The charge for homicide by vehicle while driving under the influence must include that defendant was intoxicated, that death resulted, and that the death was a direct result of defendant driving under the influence. Commonwealth v. Molinaro, 429 Pa. Super. 29, 34, 631 A.2d 1040, 1042 (1993). The trial judge correctly charged the jury for homicide by Vehicle while driving under the influence: You may also find him guilty of Vehicular Homicide VVhile Driving Under the Influence as long as you are satisfied beyond a reasonable doubt of the two elements. First, that Nelson Dougherty is dead; and, second, that the Defendant caused the death of Mr. Dougherty as a direct result of committing the crime of Driving Under the Influence. (N.T., Vol. IV, p. 764-765). The charge for homicide by vehicle must include that defendant violated the Motor Vehicle Code, that the victim died, that the violation of the Motor Vehicle Code was a direct and substantial factor in the death of the victim, and that 26 NO. 97-0818 CRIMINAL defendant's conduct was criminally negligent or reckless. Commonwealth v. Heck, 517 Pa. 192, 198-199, 535 A.2d 575, 578 (1987). The charge to the jury for homicide by vehicle was given before the jury began deliberations and re-issued after the jury had begun deliberating. (N.T., Vol. IV, pp. 767-770, 780-783). The trial judge correctly charged the jury for homicide by vehicle: One: That the defendant committed a violation of either one, some, or all of these sections of the Motor Vehicle Code that I just read to you at the time of the incident. Second: That under the circumstances the defendant acted recklessly or with gross negligence in driving in a manner which violated one, some, or all of these sections. Three: That Nelson Dougherty, Jr., is dead. And, four: That the defendant's violation of one, some, or all of these sections was a direct cause of death. (N.T., Vol. IV, p. 781-782). The charge for involuntary manslaughter must include that defendant violated the Motor Vehicle Code in a reckless or grossly negligent manner, and that death was caused as a direct result. Commonwealth v. Houtz, 496 Pa. 345, 348- 349, 437 A.2d 385, 387 (1981). The charge to the jury for involuntary manslaughter was given before the jury began deliberations and re-issued after the jury had begun deliberating. (N.T., Vol. IV, pp. 765-766, 778-780). The trial judge correctly charged the jury for involuntary manslaughter: A person commits involuntary manslaughter when he directly causes the death of another person by reckless or grossly negligent conduct. You may find the defendant guilty of involuntary manslaughter if you are satisfied the following three elements have been proven beyond a reasonable doubt: 1. That Nelson Dougherty, Jr., is dead. 2. That the defendant's conduct was a direct cause of Dougherty's death. And, 3. 27 NO. 97-0818 CRIMINAL That the defendant's conduct was reckless or grossly negligent. (N.T., Vol. IV, p. 778-779). The trial court also correctly defined the terms "reckless" and "grossly negligent:" A defendant's conduct is reckless when he is aware of and consciously disregards a substantial and unjustifiable risk that death will result from his conduct. The nature and degree of the risk being such that it is grossly unreasonable for him to disregard it. A defendant's conduct is grossly negligent when he should be aware of a substantial and unjustifiable risk that death will result from his conduct. The nature and degree of the risk being such that it is grossly unreasonable for him to fail to recognize the risk. (N.T., Vol. IV, p. 779). The instructions as given in the instant case, adequately and correctly established the criteria necessary for the jury to find in order to render a verdict on the charges of homicide by vehicle while DUI, involuntary manslaughter, and homicide by vehicle. Read as a whole, the instructions to the jury correctly reflect the law. Accordingly, as the charge was legally correct, counsel was not ineffective for failing to object to the charge. {11): Defendant's Sentence Defendant claims that the trial court abused its discretion in ordering consecutive sentences. Sentencing is vested in the sound discretion of the trial court, and a sentence will not be disturbed absent a manifest abuse of that discretion. Commonwealth v. Sanders, 426 Pa. Super. 362, 372, 627 A.2d 183, 188 (1993). The sentencing court is required to state its reasons for the sentence 28 NO. 97-0818 CRIMINAL on the record, so that a reviewing court can determine whether the sentence imposed was based upon accurate, sufficient and proper information. Id. at 372- 73, 627 A.2d at 188 (citations omitted). A court may impose consecutive sentences for convictions arising out of the same transaction. 42 Pa.C.S. § 9721. A single transaction is defined as "a crime or crimes which were committed by a defendant at a single time or in temporally continuous actions that are part of the same episode, event or incident, or which are conspiracy and the object offense." Commonwealth v. Kozarian, 388 Pa. Super. 627, 630, 566 A.2d 304, 306 (1989) (citations omitted). The trial court has the discretion to determine whether to make a sentence concurrent with or consecutive to other sentences imposed. Commonwealth v. Hoaq, 445 Pa. Super. 455, 459, 665 A.2d 1212, 1214 (1995) (citations omitted). Where offenses do not merge for sentence purposes, there is no compelling reason that criminal defendants should get a "volume discount" for multiple criminal acts that arose out of a larger criminal transaction. Id. (citations omitted). The crime of Homicide by Vehicle does not merge with the crime of Homicide by Vehicle while Driving Under Influence for sentencing purposes. Commonwealth v. Neupert, 454 Pa. Super. 62, 66, 684 A.2d 627, 629 (1996). In the present case, the trial court did not abuse its discretion in sentencing defendant to consecutive sentences for Homicide by Vehicle and Homicide by Vehicle while Driving Under the Influence. The crimes did not merge for sentencing purposes. At sentencing, the trial judge noted the presence of 29 NO. 97-0818 CRIMINAL aggravating circumstances in this case. (Notes of Testimony at Sentencing Hearing, p. 19-20). Defendant drove at 89 miles per hour in heavy traffic without a license to drive, flagrantly disregarding the safety of others. Defendant lied to the police about a nonexistent person in the car, sending police and fire police on a wild goose chase. The trial court acted within its discretion by refusing to give Defendant a "volume discount" for the offenses that did not merge. Defendant's claim that the trial court abused its discretion is without merit because Defendant's offenses were so egregious as to call for consecutive sentences. {12): Improper Statements by the Prosecution The defendant next turns his strabismic eye upon trial counsel, claiming counsel was ineffective for failing to object to or preserve issues of prosecutorial misconduct. Defendant claims the District Attorney made inflammatory and improper statements to the jury in opening and closing statements. The defendant claims the following statements were improper: (a) Using the word "pulverizing" to describe the effect of defendant's car upon the victim's head and body. (b) Making direct comments on the defendant's right to remain silent. (c) Telling the jury that the victim's family would not be present when the coroner testified, implying that the family could not bear hearing the gruesome details. (d) Giving the personal opinion that defendant killed the victim. 3O NO. 97-0818 CRIMINAL (e) Commenting that the defendant's car was free of defects when the Commonwealth had disposed of the car before a defense expert could examine it. (f) Commenting that defense counsel was not working to protect Constitutional principles, but rather to make money --"take a look at his Rolex." (g) Commenting that the jury should convict the defendant because the law required it. (h) Making an incomplete statement of the elements for Homicide by Vehicle. A new trial should be granted due to prosecutorial misconduct if the prosecution's comments "so prejudice the jury that it was unable to render a fair verdict according to the evidence." Commonwealth v. Thomas, 372 Pa. Super. 349, 362, 539 A.2d 829, 836 (1988). A prosecutor may use oratorical flair in summarizing evidence, but may not deliberately attempt to destroy the fact finder's objectivity. Commonwealth v. Raqan, 538 Pa. 2, 37, 645 A.2d 811, 828 (1994). Trial counsel cannot be found to be ineffective for failing to assert a meritless argument. Commonwealth v. Yaqer, 454 Pa. Super. 428, 436, 685 A.2d 1000, 1004 (1996). We shall now address each of defendant's claims of error. 31 NO. 97-0818 CRIMINAL (a) In the present case, the district attorney described the effect of defendant's car on the victim's head as "pulverizing". (N.T., Openings and Closings, p. 4). Using the word "pulverizing" was an accurate depiction of the manner of the victim's death. This statement did not destroy the fact finder's objectivity. (b) The prosecution made direct comments on defendant's silence in response to police questioning. (N.T., Openings and Closings, p. 7-8). However, defendant was not under arrest at the time of questioning. The right to remain silent only attaches after arrest. Commonwealth v. Monahan, 378 Pa. Super. 623, 628-29, 549 A.2d 231,233-234 (1988). The defendant's behavior before he was placed under arrest is part of the record. (N.T., Vol. III, p. 408-422). Thus, there was no misconduct by the prosecution in commenting on defendant's silence prior to his arrest. (c) The prosecution implied that the details of the victim's death would be too gruesome for the victim's family to hear. (N.T., Openings and Closings, p. 10- 11). Such an implication was not improper because it resulted from a plain statement of the case. The details of the victim's death were gruesome. Thus, the prosecution's statements did not destroy the fact finder's objectivity. (d) The prosecution's statements that the defendant killed the victim did not prejudice the finder of fact. The statements were not personal opinion; they were characterizations of what the evidence had shown. The district attorney told the jury, "[t]hat man right there killed Nelson Dougherty, Jr." (N.T., Openings and 32 NO. 97-0818 CRIMINAL Closings, p. 60). The district attorney also said, "[h]ere are the scrape marks that the car made after he killed Nelson. Here is the indentation where he lost his wheel after he killed Nelson." (N.T., Openings and Closings, p. 71). These statements were a mere summary of the fact that the defendant drove the car that killed the victim. Thus, the statements did not destroy the fact finder's objectivity. (e) The prosecution argued to the jury that the defendant's car was free of defects. (N.T., Openings and Closings, p. 67). Although the car was destroyed and defense experts were unable to inspect it, defense counsel received copies of the reports produced by the Commonwealth's experts. There was no attack on the reports by the defense counsel. Thus, hearing that the car was free of defects did not prejudice the finder of fact. (f) The prosecution remarked that defense counsel's representation was motivated by money rather than Constitutional ideals ("take a look at his Rolex"). (N.T., Openings and Closings, p. 78). Although intemperate, this comment did not rise to the level of denying Defendant a fair trial. The remark did not prevent the jury from fairly weighing the evidence. (g) The prosecution's statement to the jury that the law required a conviction was appropriate when read in context. The prosecution's full statement was: Convict Robert Banks not because you are mad at him, convict him not because you feel sorry for his family or Nelson's family, convict him not because of suspicion. Convict him because the evidence supports a conviction as charged. Convict him because that is what the law requires. Convict him because that is what justice demands. 33 NO. 97-0818 CRIMINAL (N.T., Openings and Closings, p. 78). (h) The prosecution's statement defining Homicide by Vehicle incompletely stated the law. (N.T., Openings and Closings, p. 64). However, juries are presumed to follow the court's instructions as to the applicable law. Commonwealth v. Hawkins, 549 Pa. 352, 374, 701 A.2d 492, 503 (1997). See also Commonwealth v. Baker, 531 Pa. 541, 559, 614 A.2d 663, 672 (1992). As discussed above, the court's instructions to the jury accurately reflected the law. As such, the jury received proper instructions and were not prejudiced by the district attorney's alleged misstatement of the law. Because arguments addressing any of the issues above would have been without merit at trial, Defendant cannot claim that defense counsel was ineffective for failing to make such arguments. ¢13}: Prosecutorial Misconduct for Initiatin.q Contact with the Defendan: The defendant alleges that District Attorney Ebert ("Ebert") committed prosecutorial misconduct by initiating contact and eliciting information from the defendant without the knowledge of Allen C. Welch, Jr., ("Welch"), the defendant's attorney at the time. The defendant claims violations of the Pennsylvania Rules of Professional Conduct, Rules 4.2, 3.8, 1.9(b), and 1.10. The defendant alleges that he told Ebert details of his crime that could prejudice him, including the entire circumstances of the wreck and who was driving the car. 34 NO. 97-0818 CRIMINAL "The trier of fact may bring to bear his or her sensory observations, experience, common sense and logic upon the witness to assess credibility and to determine the truth and accuracy of... in-court testimony." Commonwealth v. Brady, 507 A.2d. 66, 69, 510 Pa. 123, 129 (1986). The Court listened as the defendant maintained several significant falsehoods throughout his testimony,7 including the fallacy that the defendant did not drive the car at the time of the collision. After hearing testimony at trial and the testimony of the defendant and other witnesses during the Ineffectiveness of Counsel Hearing, the Court determined that the defendant was not telling the truth about meeting with Ebert. According to Welch, the defendant initiated contact with Ebert to cut a deal on his sentence. Welch testified, "1 received a phone call from Mr. Ebert... Mr. Ebert indicated that Mr. Banks had sent word to him that he wanted to be brought to the courthouse because he had information that he wanted to... give to Mr. Ebert regarding another case in hopes that it would get him some leniency in his case." (Notes of Testimony In re: Ineffectiveness of Counsel (hereinafter "N.T.I.C.") p. 18). "1 discovered that, in fact, [Banks] had contacted the D.A.'s office because he had information about a gun that had been used in a shooting." (N.T.I.C.p. 16). "[Ebert] also indicated to me that Mr. Banks had told him he wouldn't give him any information at all unless Ebert was willing to give him a one year minimum sentence." (N.T.I.C.p. 19). "Mr. Ebert told me that he was not at all prepared to do that and he wasn't about to." (N.T.I.C.p. 19). Given at the after-trial "ineffectiveness" hearing. 35 NO. 97-0818 CRIMINAL The defendant claims that when he met with Ebert without assistance of counsel, Ebert violated the Rules of Professional Conduct and defendant's right to counsel under the Sixth and Fourteenth Amendments of the U.S. Constitution and the Pennsylvania Constitution Article I, §9. The defendant claims that his meeting with Ebert deprived him of counsel. Defendant alleges violations of the Rules of Professional Conduct concerning representation by counsel. Each rule cited by the defendant exemplifies violations where a prosecutor or an attorney contacted a defendant or other represented persons or prosecuted or questioned an unrepresented person. Because defendant initiated contact with Ebert, creating the conflict that led to the withdrawal of his counsel, no violations of the Rules of Professional Conduct were committed. The standard when reviewing claims of violations of the sixth amendment right to counsel, in the context of an intrusion into the defense camp, is whether there has been "a very real likelihood of prejudice to the defendant." Commonwealth v. Scarfn, 611 A.2d 242, 267, 416 Pa. Super. 329, 377 (Pa. Super., 1992). Defendant cites .Scarfo, a case involving multiple defendants, where a defendant gave information to the prosecution that was useful in another case and the defendant became a prosecution witness. Id. The other defendants in the Scarfo case successfully contended that prejudice resulted for them. Id. Even if there is no strategic information given to the prosecution by the defendant, the uncertainty must be resolved in favor of the other defendants in a multi-defendant case. Id. 36 NO. 97-0818 CRIMINAL Ebert did not interfere with the defendant's right to counsel because the defendant initiated contact with the District Attorney. The defendant' actions, not Ebert's, brought about the conflict of interest for Welch. The defendant's incorrectly relies on the Scarfo case. In the case at bar, the defendant gave no useful information to the prosecution. No deal was made. (N.T.I.C.p. 19). The defendant did not become a prosecution witness in this case or in an unrelated case. Also, this case does not involve other defendants, where the likelihood of prejudice would increase. Thus, because the defendant initiated contact and did not give any incriminating evidence against himself, the Court finds no support for the defendant's allegations of prosecutorial misconduct. 37