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HomeMy WebLinkAboutCP-21-CR-2383-2005 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. SHELBY JANE UNGER-BACZ CP-21-CR-2382-2005 CP-21-CR-2383-2005 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., February 16, 2007:-- On September 26, 2006, at 2382-2005, a jury convicted defendant, Shelby Jane Unger-Bacz, of possession with intent to deliver schedule II controlled substances, (cocaine), between January, 2003 and August, 2005,1 and criminal conspiracy to unlawful possession with intent to deliver schedule II controlled substances.2 At 2383- 2005, defendant was convicted of possession with intent to deliver schedule II controlled substances, (cocaine), on September 13, 2005,3 and criminal conspiracy to possession with intent to deliver schedule II controlled substances.4 1 35 P.S. S 780-113(a)(30). 218 PaC.S. S 903. 3 35 P.S. S 780-113(a)(30). 418 PaC.S. S 903. CP-21-CR-2382-2005 CP-21-CR-2383-2005 On December 12, 2006, at 2382-2005, defendant was sentenced for possession with intent to deliver controlled substances, to pay the costs of prosecution, a fine of $50,000, and undergo imprisonment in a state correctional institution for not less than seven years or more than fourteen years.5 For criminal conspiracy, she was sentenced to pay the costs of prosecution. At 2383-2005, defendant was sentenced for unlawful possession with intent to deliver controlled substances to pay the costs of prosecution, a fine of $30,000, and undergo imprisonment in a state correctional institution for not less than five years or more than ten years, to run concurrent with the prison sentence at 2382-2005.6 For criminal conspiracy, she was sentenced to pay the costs of prosecution. Defendant filed a direct appeal from the judgment of sentences to the Superior Court of Pennsylvania. In a concise statement of matters complained of on appeal, she avers: 1. Defendant is entitled to a new trial as a result of unavailable witnesses due to all of the remaining co-defendants' election to plead guilty and be sentenced subsequently to commencement of Defendant's jury trial. 2. The legal definition of the defense of duress is so confusing that a jury cannot understand the defense of duress. 5 The seven year minimum sentence and the fine were mandatory minimums. 6 The five year minimum sentence and the fine were mandatory minimums. -2- CP-21-CR-2382-2005 CP-21-CR-2383-2005 3. The Court's good faith effort to define the defense of duress was In error. WAIVER There is no written or oral motion or other objection or order on the record whereby any issue was preserved as to witnesses not being available to defendant at trial. Therefore, assignment of error Number 1 is waived. At the close of the charge the court asked defense counsel, "Are there any additions or objections to add to the charge?" Counsel answered, "No." Therefore assignment of error Number 2, that "The legal definition of the defense of duress is so confusing that a jury cannot understand the defense of duress," is waived. Assignment of error Number 3 is that, "The Court's good faith effort to define the defense of duress was an error." During the course of deliberations the jury asked, "can you explain in layman's terms the paragraph in which you explained intimidation, duress?" The court again explained the defense of duress, after which defense counsel stated and the court responded: Your Honor did a great job in telling us what coercion and duress is. But one of my concerns is that her mental state is one of the main issues, and Your Honor said it, but I don't know if it was said as often or as firmly as the other ones. I'm looking as defense counsel and not a criticism to you. (Emphasis added.) THE COURT: I think I went over it twice and pretty much put it together, but I understand what you are saying. Counsel stated a concern only that the issue of defendant's mental state be stated more often and firmly. There was no objection that the definition of duress was In error. Therefore, assignment of error Number 3, is waived. Notwithstanding that the -3- CP-21-CR-2382-2005 CP-21-CR-2383-2005 three assignments of error set forth in the concise statement of matters complained of on appeal are raised for the first time in the direct appeal, we will address the issues on the merits. I. THE UNAVAILABILITY OF WITNESSES CLAIMS Defendant maintains that she is entitled to a new trial because of unavailable witnesses due to the remaining co-defendants' election to plead guilty and be sentenced after her jury trial. Defendant's brief which was filed with the court in support of the concise statement of matters complained of on appeal identifies only one co- defendant by name, George Santiago, and states that he refused to cooperate by asserting his Fifth Amendment privilege. Defendant maintains that she wanted to call him to support her defense that she was under his duress when she committed the crimes for which she was charged and which she admitted during her testimony that she committed. Defendant cites no authority that she is now entitled to a new trial, or is there any. Furthermore, our review of the following testimony of witnesses shows that defendant was not precluded from asserting her defense of duress because she presented the testimony of three witnesses, and she was allowed to cross-examine three Commonwealth witnesses on the issue despite there being no testimony on their direct examination as to duress. Defendant, age 32, testified that she was a cocaine addict. She admitted her extensive participation with George Santiago in selling and delivering cocaine. She -4- CP-21-CR-2382-2005 CP-21-CR-2383-2005 testified that she met Santiago in 2002 when she bought drugs from him. Sometimes he would have a gun and he would tell her "if she ever screwed him he would come after her." In time she moved in with him with her children who are now ages five and seven. She was selling drugs for him even before she moved in. She testified to incidences in which he head butted her and gave her a black eye, pulled her out of a car window, threw her down stairs and chocked her. She testified that he kept guns in a house other than where they lived together. He threatened to kill her on occasions. She testified that she went to a hospital on three occasions because of injuries he inflicted on her. The Commonwealth called John Baum as a witness. He testified that he had pled guilty to drug charges for which the Commonwealth had waived a three year mandatory minimum under an agreement to make a recommendation regarding sentence if he testified truthfully. Baum implicated defendant in extensive cocaine sales. On cross-examination, Baum was allowed to testify that he had known defendant for 25 years. He met George Santiago through her. He testified that he knew defendant used cocaine extensively, and that her relationship with Santiago was stormy. He had seen Santiago strike her twice, one time with a pistol, and threaten her on both occasions. He knew there were times when Santiago would not let her leave their house. -5- CP-21-CR-2382-2005 CP-21-CR-2383-2005 The Commonwealth called Valerie Keeseman as a witness. She was then in the Cumberland County Prison on two consecutive nine month to twenty-four month sentences pursuant to a plea agreement based on her cooperation. She testified to her numerous purchases of crack cocaine from defendant. On cross-examination, Keeseman was allowed to testify that on about a dozen occasions she saw Santiago intimidate defendant by yelling and cursing at her. On about a dozen occasions defendant came to Keeseman's home where she saw hand marks on defendant's face, neck and arms. On these occasions defendant was "emotionally a wreck." Keeseman knew that Santiago kept defendant on a "tight leash." There was times when defendant would leave Santiago's home with cocaine and he would go looking for her. On at least six occasions Keeseman knew that Santiago threatened to kill defendant for taking his cocaine. The Commonwealth called Tower Swartz as a witness. He testified to extensive drug dealing by defendant who he had known since she was about age thirteen. On cross-examination, he was allowed to testify that on one occasion he saw Santiago yank defendant out of a car and on another he saw him grab her and throw her against a trailer. The defense called Lisa Mullet as a witness. She is the sister of defendant. She testified that she heard arguments between Santiago and defendant on at least a dozen occasions. She saw Santiago throw defendant against a counter wall. On eight -6- CP-21-CR-2382-2005 CP-21-CR-2383-2005 or nine occasions she saw marks on defendant's neck, breasts, arms and back. She heard Santiago threaten to kill defendant. Defendant would leave Santiago at times, and sometimes stay at her house. The defense called Martha Unger as a witness. She is the mother of defendant. She testified that on two occasions she saw marks on her daughter's back, arms and breasts. On one occasion she saw her daughter on the ground when Santiago was there. The defense called Lisa Peters as a witness. She is a friend of defendant. She saw Santiago grab and push defendant. On one occasion she saw her with a black eye, and another with a mark on her back. On several occasions she saw defendant try to take her children from the house but Santiago would not let her. On one occasion he disabled defendant's car. II. THE CLAIM OF ERROR IN THE CHARGE OF DURESS Defendant avers that the charge of the defense of duress was error and it confused the jury. The Crimes Code at 18 Pa. C. S. Section 309 defines the defense of duress: (a) General rule.-It is a defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist. (b) Exception.- The defense provided by subsection (a) of this section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to -7- CP-21-CR-2382-2005 CP-21-CR-2383-2005 duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offense charged. (Emphasis added.) Tracking Pennsylvania Suggested Standard Jury Instruction 8.309, the court charged the jury on the defense of duress: . . . you must consider the defense of duress. When I say consider the defense of duress, you must consider whether the Commonwealth has proven beyond a reasonable doubt that defendant did not act with duress if you find that she committed any of the crimes for which she is charged. . . . Let's talk about what duress is under Pennsylvania law. If defendant committed acts otherwise constituting a crime but did so under duress, she may not be found guilty of that crime. You must consider that first. A defendant acts under duress when she is coerced into doing an otherwise criminal act by the use of or threat to use unlawful force against her or others. Second, the force used or threat must be of such a nature that a person of reasonable firmness in the defendant's situation would have been unable to resist it. The force used or threatened need not be of present or impending death or serious bodily harm for this to apply. You must ask yourself objectively whether a person of reasonable firmness would have been able to resist doing a criminal act or acts if she was subjectively placed in defendant's actual situation. You may in this regard consider the factors that might differentiate this defendant from another, like size, strength, age, physical and mental health. You may also consider the actual situation surrounding the defendant at the times of the alleged duress, such as the severity of the offenses she is alleged to have committed or was being asked to commit, the nature of the force used or threat, or any alternative she may have had reasonably available to her to have averted force or threat of force. Third, defendant must not have recklessly placed herself in a position where it was probable that someone would subject her to duress in order to get her to commit criminal offenses. You must ask whether the defendant by her actions consciously disregarded a -8- CP-21-CR-2382-2005 CP-21-CR-2383-2005 substantial and unjustifiable risk that she was putting herself into a situation where it was probable that she would be subject to duress from another. In other words, did defendant disregard such a risk, and if so, whether her conduct amounts to a gross deviation from what an objectively reasonable person would have done if they were placed in the defendant's situation at the time. As I [previously] said, the burden of proof is on the Commonwealth. You cannot find defendant guilty of any of these criminal charges unless you are satisfied beyond a reasonable doubt that defendant in committing any of the criminal acts did not act under duress. . . . [i]f you find defendant didn't -- the Commonwealth has not proven beyond a reasonable doubt that defendant committed any of these crimes, you find her not guilty right up front. If you were to find beyond a reasonable doubt that she did commit any of the crimes charged, then you must consider, as I said, whether the Commonwealth has proven beyond a reasonable doubt that she did not act under duress. I am going to read that to you again... . If defendant commits acts otherwise constituting a crime but did so under duress, she may not be found guilty of that crime. You must consider that first. A defendant acts under duress when she is coerced into doing an otherwise criminal act by the use of or threat to use unlawful force against her or other persons. Second, the force used or threat must be of such a nature that a person of reasonable firmness in defendant's situation would have been unable to resist it. The force used or threatened need not be of present or impending death or serious bodily harm for this to apply. You must ask yourself objectively whether a person of reasonable firmness would have been able to resist doing a criminal act or acts if she was subjectively placed in defendant's actual situation, if that person of reasonable firmness was subjectively placed in defendant's situation. You may in this regard consider the factors that might differentiate this defendant from another, like size, strength, age, physical, mental health. You may also consider the actual situation surrounding the defendant at the times of the alleged duress, such as the severity of the offense she was being asked to commit, the nature of the force or the threatened force, and any alternatives she may have had reasonably available to her to have averted any force or threat of force. -9- CP-21-CR-2382-2005 CP-21-CR-2383-2005 Third, defendant must not have recklessly placed herself in a position where it was probable that someone would subject her to duress in order to get her to commit criminal offenses. You must ask whether defendant by her actions consciously disregarded a substantial and unjustifiable risk that she was putting herself into a situation where it was probable that she would be subject to duress from another. In other words, did defendant disregard such a risk, and if so, whether her conduct amounts to a gross deviation from what an objectively reasonable person would have done if they were in the defendant's situation at that time. During the course of deliberations the jury asked the following question: "Can you explain in layman's terms the paragraph in which you explained intimidation, duress?" The court charged: If defendant committed acts otherwise constituting a crime but did so under duress, she may not be found guilty of that crime. You must consider that first. A defendants acts under duress when she is coerced into doing an otherwise criminal act by the use of or threat to use unlawful force against her or others. That is pretty well layman's terms. Second, the force used or threatened must be of such a nature that a person of reasonable firmness in defendant's situation would have been unable to resist it. So that is talking about another person using reasonable -- a person who would be in defendant's situation being able to use reasonable firmness with regard to resisting. The force used or threatened must be of such a nature that a person of reasonable firmness in defendant's situation would have been unable to resist it. The force used or threatened need not be present or impending death or serious bodily injury. So it does not have to be force of that severe nature, but it must be a force that a person of reasonable firmness in defendant's situation would have been unable to resist it. You must ask yourself objectively whether a person of reasonable firmness would have been able to resist doing a criminal act or acts if she was subjectively placed in defendant's actual situation. You must ask yourself objectively, looking at the thing objectively, whether a person of reasonable firmness, that is another person of reasonable firmness, would have been able to resist doing a -10- CP-21-CR-2382-2005 CP-21-CR-2383-2005 criminal act or acts if she, I use she in this case, was subjectively placed in defendant's actual situation. Well, placed in defendant's actual situation. So we have to look at defendant's conduct vis-a-vis what a person of reasonable firmness would have been able to do in her actual situation. That is what that means. You may in this regard consider the factors that might differentiate this defendant from another, like size, strength, age, physical or mental health. You may also consider the actual situation surrounding the defendant at the times of the alleged duress, that she alleges duress, such as, and this relates to her, the severity of the offenses she was being asked to commit, the nature of the force used or threatened. That would be such force used or threatened as you would find from the facts that may have occurred in this case or did occur in this case. Any alternative she, that means defendant, may have had reasonably available to her to have averted the force or threatened force. So you look and you find what force or threat of force was used, what was the severity of the offense, were there alternatives reasonably available to her, and that means alternatives to have committed the crimes that are alleged to have occurred in this case. Third, these are things you must consider in determining whether or not she acted under duress. Defendant must not have recklessly placed herself in a position where it was probable that someone, in this case she is alleging Santiago, would subject her to duress to get her to commit criminal offenses. She must not have recklessly herself placed herself in a position where it was probable that George Santiago would subject her to duress in order to get her to commit criminal offenses. You must ask whether this defendant by her actions, and this is legalese, I'll see what I can do with this, consciously disregarded a substantial and unjustifiable risk that she was putting herself into a situation where it was probable that she would be subject to duress from another. Now, that is the definition of recklessness. So it starts out that defendant must not have recklessly placed herself in a position where it was probable that Santiago would subject her to duress in order for her to commit the alleged drug offenses, and then it defines what recklessness is. You must ask whether defendant by her actions, and this is the definition of recklessness, consciously disregarded a substantial and unjustifiable risk that she was putting herself into a -11- CP-21-CR-2382-2005 CP-21-CR-2383-2005 situation where it was probable that she would be subject to duress from Santiago. In other words, did defendant -- and this is standard reckless language in this case or any other type of case. Did defendant disregard such a risk, and if so, whether her conduct in this regard is such a risk that amounts to a gross deviation, a big deviation, from what an objectively reasonable person would have done if that person was in defendant's situation at the time. So that's looking at her conduct vis-a- vis what an objectively reasonable person would have done. Then, of course, the burden of proof is on the Commonwealth to prove that defendant did not act under duress. So let's recapitulate and put those together again. She must have acted under duress when -- you must consider that first a defendant acts under duress when she is coerced into doing something -- when she is coerced into doing an otherwise criminal act by the use of or threat of force, unlawful force against her or others. So duress is coercion. That is the first part, coercion. Secondly, the force used or threatened must be of such a nature that a person of reasonable firmness in her situation would have been unable to resist. When that says that, it also tells us the force used or threatened need not be of present or impending death or serious bodily injury for this to apply, but it must be of such a nature that a person of reasonable firmness in defendant's situation would have been able to resist it. In this regard, you must ask yourself objectively whether, again, a person of reasonable firmness would have been able to resist doing criminal acts, drug stuff, if that person was subjectively placed in defendant's actual situation, reasonable firmness. You may in this regard consider the factors that might differentiate this defendant from another, again, size, strength, age, physical and mental health. You may also consider the actual situation surrounding defendant at the times of the alleged duress, such as the severity of the offenses she was being asked to commit, the nature of the use of force, the nature of the force used or threatened, as you may find, any alternatives she may have had reasonably available to her to have averted the force or threat of force. So we know that duress is coercion. You have to look at what the extent of it was vis-a-vis a person of reasonable firmness in dealing with it. You must look at all of those factors. -12- CP-21-CR-2382-2005 CP-21-CR-2383-2005 Lastly, this is the recklessness aspect, defendant must not have recklessly placed herself in a position where it was probable that someone, Santiago, would subject her to duress, coercion, in order to get her to commit the alleged drug offenses. You must ask in this regard in dealing with this recklessness whether by her actions she consciously disregarded a substantial and unjustifiable risk that she was putting herself into a situation where it was probable that she would be subject to duress from another. In other words, and again defining recklessness, the defendant's disregard -- did defendant disregard such a risk, and if doing so, did her conduct amount to a gross deviation from what an objectively reasonable person would have done, again, looking at what an objectively reasonable person would have done, if they were in the defendant's situation at that time. Now, I have worked my way through it. I hope I have helped you. While I have repeated it a number of times, repetition is a good teaching device, I hope I have used some more common terms than some of the legal ones in here in defining these various factors that go into duress. We know duress is coercion. We have to examine it in light of the fact of what you find occurred here. Put it in the context of how serious the crimes are she is alleged to have committed, and also look at it with regard to whether or not based on what you find has happened she recklessly placed herself in the position where it was probable that someone would subject her to duress. If she did that, then it would be duress. Look at all those factors, remembering the defendant has no burden of proof. In Commonwealth v. Demarco, 809 A.2d 256 (Pa. 2002), the Supreme Court of Pennsylvania stated that: . . . to establish the duress defense under Section 309, unlike under the common law rule, the force or threatened force does not need to be of present and impending death or serious bodily injury. Instead, the relevant inquiry under Section 309 is whether the force or threatened force was a type of unlawful force that "a person of reasonable firmness in [the defendant's] situation would have been unable to resist." Id. (emphasis added). This test is a hybrid objective- -13- CP-21-CR-2382-2005 CP-21-CR-2383-2005 subjective one. See 18 Pa C. S. 309 cmt. (1972) ("[Section 309] is derived from Section 2.09 of the Model Penal Code"); Model Penal Code S 2.09 explanatory note (1985); id. S 2.09 cmt. at 7 (Tent. Draft No.1 0, 1960). While the trier of fact must consider whether an objective person of reasonable firmness would have been able to resist the threat, it must ultimately base its decision on whether that person would have been able to resist the threat if he was subjectively placed in the defendant's situation. Therefore, in making its determination, the trier of fact must consider "stark, tangible factors, which differentiate the [defendant] from another, like his size or strength or age or health." Model Penal Code S 2.09 cmt. at 7 (Tent. Draft No.1 0, 1960). Although the trier of fact is not to consider the defendant's particular characteristics of temperament, intelligence, courageousness, or moral fortitude, the fact that a defendant suffers from "a gross and verifiable" mental disability "that may establish irresponsibility" is a relevant consideration. Id. at 6, Moreover, the trier of fact should consider any salient situational factors surrounding the defendant at the time of the alleged duress, such as the severity of the offense the defendant was asked to commit, the nature of the force used or threatened to be used, and the alternative ways in which the defendant may averted the force or threatened force. See id. at 7-8. Even where the evidence is sufficient to establish the elements of the duress defense set forth in Section 309(a), however, the defendant still may not be entitled to avail himself of the defense under the exception in Section 309(b). According to the exception, the duress defense is not available if the evidence establishes that the defendant recklessly placed himself in a situation where it was probable that he would be subject to duress. 18 PaC.S. S 309(b). For purposes of Section 390, "recklessly" is denied as follows: A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. 18 PaC.S. S 302(b)(3) (emphasis added). See also Commonwealth v. Knight, 416 PaSuper. 586, 611 A.2d 1199, 1204-05 (1992). Therefore, like the test for determining whether the defendant was subject to duress, the test for determining whether a defendant acted -14- CP-21-CR-2382-2005 CP-21-CR-2383-2005 recklessly under Section 309 is a hybrid objective-subjective one. See Model Penal Code S 2.02 cmt. at 237-40 (1985). The trier of fact must decide whether the defendant disregarded a risk that involves a gross deviation from what an objective "reasonable person" would observe if he was subjectively placed "in the [defendant's] situation." 18 PaC.S. S 302(b)(3). Thus, in making its determination, the trier of fact must again take into account the stark tangible factors that differentiate the defendant from another person and the salient situation factors surrounding the defendant. See Model Penal Code S 2.02 cmt. at 237 -40 (1985). (Emphasis added.) Complaining about the objective and subjective aspect of the jury charge, defendant argues in her brief that, "the jury instruction is impossible to understand as written. The jury instruction for 'duress' is a prime example of 'legalese,' a language as baffling to a juror who visits a country for a short vacation where English is not spoken." The charge conforms to the law as set forth by the Supreme Court in Commonwealth v. Demarco, supra. There is no reasonable basis for saying the jury could not understand it. They asked it be explained a second time and then reached a verdict. There was no error requiring a new trial. The judgment of sentences were properly entered. (Date) Edgar B. Bayley, J. Heather Adams, Esquire William R. Stoycos, Esquire For the Commonwealth Arthur L. Gutkin, Esquire F or Defendant -15- CP-21-CR-2382-2005 CP-21-CR-2383-2005 :sal -16-