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HomeMy WebLinkAbout98-2195 criminalCOMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : : : RONNIE EUGENE JOHNSON : NO. 98-2195 CRIMINAL TERM : : IN RE: DEFENDANT ' S OMNIBUS PRETRIAL MOTION BEFO~_R GUIDO, J~- O~_~ER OF COURT_ ~~ day of MAY, 1999, after hearings on AND NOW, this _ - Defendant's Omnibus Pretrial Motion, and for the reasons set forth in the accompanying opinion, it is hereby ordered and directed as follows: 1) Defendant's statement given to the Carlisle Police on June 23, 1998 is SUPPRESSED. 2) Defendant's request to be tried separately from his co- defendant Jermaine Watkins is DENIED. 3) Defendant's request that we declare Section 9711(d)(7) of the Judicial Code [42 Pa. C.S.A. § 9711(d)(7)] to be unconstitutional is DENIED. 4) We reserve ruling upon the constitutionality of the victim impact provisions contained in 42 Pa. C.S.A. 9711(c)(2). . By the Edward E. Guido,- J. District Attorney ~ ~i~ ~? ~ Hubert X. Gilroy, Esquire. For the Defendant COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA V. : : : RONNIE EUGENE JOHNSON : NO. 98-2195 CRIMINAL TERM : IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION · BEFORE GUIDO, J._ OPINION AND ORDER OF COURT The Defendant filed an Omnibus Pretrial Motion in which he has raised several issues. Various hearings were held before this Court. The parties were given the opportunity to brief their respective positions. In his brief, as well as at oral argument, Defendant's counsel indicated that many of the issues raised in his Omnibus Pretrial Motion had been resolved to Defendant's satisfaction or were being abandoned. The only issues left to be addressed by this Court are as follows: 1) Must the statement obtained from the Defendant by the Carlisle Police at Riker's Island Prison on June 23, 1998 be suppressed? 2) Should the Defendant be tried separately from his co-defendant Jermaine Watkins? 3) Is the aggravating circumstance contained in 42 Pa. C.S.A. § 9711(d) (7) constitutional? 4) Are the victim impact provisions contained in 42 Pa. C.S.A. § 9711(c)(2) constitutional? We will address the issues seriatim. NO. 98-2195 CRIMINAL TERM FACTUAL STATEMENT This case arises out of a shooting incident that occurred on Memorial Day, May 25, 1998. In the late afternoon at a crowded park in the Borough of Carlisle, the victim, Anthony Banks, was shot to death on a basketball court. Another victim, Robert Anderson, Jr. was seriously wounded. On May 27, 1998 the Carlisle Police filed criminal complaints against four individuals allegedly involved in the incident. The Defendant's identity was unknown at the time of the filing of the complaint. The complaint contained numerous charges including murder and conspiracy to commit murder. It named Defendant as "John Doe, AKA Flem, Flems, Flim, Flam." On June 10, 1998 the Defendant was arrested in New York City on the John Doe warrant issued in connection with these charges. Extradition proceedings were commenced immediately. On June 11, 1998 counsel was appointed by the Criminal Division of the Supreme Court of New York to represent the Defendant in connection with the extradition proceedings. On June 23, 1998, Detectives Smith and Fones of the Carlisle Police Department travelled to Riker's Island in order to interview the Defendant regarding the Memorial Day shooting. The Defendant executed a Miranda Waiver and made certain statements. The detectives acknowledge that the Defendant's New York attorney was not present for the interview nor was he consulted by the police prior to the interview. NO. 98-2195 CRIMINAL TERM DISCUSSION Suppression of the June 23, ~998 Statement. The Defendant bases his request to suppress the June 23, 1998 statement on several grounds. However, since we are compelled to suppress the statement based upon our determination that his Sixth Amendment right to counsel was violated, we need only address that issue. The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right.., to have the Assistance of Counsel for his Defense." Once this right has attached, it cannot be waived during a police initiated custodial interview. Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986). The Sixth Amendment right to counsel attaches only after a prosecution is commenced, that is "at or after the initiation of adversary judicial criminal proceedings - whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." .United States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146, 154 (1984). However, the right is offense specific, as is its Michigan v. Jackson effect of invalidating subsequent waivers in police initiated interviews. ..McNeil v. Wisconsin, 501 U.S. 171, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991 ~There is a distinction between the Sixth Amendment right to counsel which is offense specific and the Fifth ~nendment right against self incrimination which guarantees the presence of counsel during custodial interrogation and is not offense specific. This distinction was discussed at length in McNeil. v. NO. 98-2195 CRIMINAL TERM In the case before us the Commonwealth concedes that "adversary judicial criminal proceedings" had commenced when the Defendant appeared before the Criminal Division of the Supreme Court of New York on June 11, 1998 and counsel was appointed to represent him in connection with the extradition proceedings. However, the District Attorney argues that since the Defendant's Sixth Amendment right to counsel is offense specific, it attached only to the extradition proceedings and not to the underlying murder charge. We are not persuaded by the Commonwealth's argument that the fugitive from justice charge in New York was a separate offense from the underlying murder warrant upon which it was based. In holding that the Sixth Amendment right to counsel is offense specific the United States Supreme Court reasoned The police have an interest ... in investigating new or additional crimes [after an individual is formally charged with one crime .... ] [T]o exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at the time, would unnecessarily frustrate the public's interest in the investigation of criminal activities. Maine v. Moulto~, 474 U.S. 159, 179-180, 106 S.Ct. 477, 488-489, 88 L.Ed.2d 481, 498 (1985). In the case before us the police were not investigating any "new or additional" crimes. Rather they were questioning the Defendant in connection with the very same crime which formed the basis of the extradition proceeding Wisconsin, supra. NO. 98-2195 CRIMINAL TERM he was facing in New York. We feel that our decision in this case is controlled by the Third Circuit's ruling in United States v. Arnold, 106 F.3d 37 (3rd Cir. 1997). In Arnold the Court held that when investigating new or ongoing criminal activity for which an accused had not been indicted, the government does not violate the Sixth Amendment. The government may interrogate an accused about nnrela~ed, nn~har~e4 offenses to which the right of counsel has not yet attached. (emphasis added) 106 F.3d at 40.2 Applying the above language to the circumstances before us we have no alternative but to conclude that the Defendant's Sixth Amendment right to counsel was violated. The murder charge in the instant case was neither uncharged nor unrelated to the 2The Arnold Court adopted the "closely related" exception to the offense specific rule. In other words, "once the right to counsel attaches with respect to a charged offense, it carries over to 'closely related' but uncharged crime." 106 F.3d at 40. Our own appellate Courts adopted a type of "closely related" exception of their own in the case of.In re Pack, 420 Pa. Super. 347, 616 A.2d 1006 (1992), Dlloc. denied, 535 Pa. 669, 634 A.2d 1117 (1993). As the Pack Court stated: The question which then remains is whether appellant could be interrogated with regard to a related, but new offense, once his Sixth Amendment right to counsel had attached on the original charges. This is a question of first' impression in this Commonwealth .... We find that the Pennsylvania Supreme Court has interpreted the Sixth Amendment right to counsel, which is offense specific, to apply to all the offenses arising from the same incident .... [I]n Santiago, supra, ... the Court held that the right to counsel under the Sixth Amendment does not bar officials from interrogating a defendant for other unrela%e4 offenses. Santiago, 528 Pa. at 521, 599 A.2d at 202. (emphasis in original) 616 A.2d at 1010-1011. NO. 98-2195 CRIMINAL TERM extradition proceedings. When the police initiated the 'interrogation of the Defendant at Riker's Island for the murder of Anthony Banks, a complaint charging him with that crime had already been filed. In addition, a warrant for his arrest had been issued and formed the basis for the extradition proceedings which were pending in New York State. There can be no doubt that the extradition proceedings were, at the very least, closely related to the underlying murder charge. Therefore, the Defendant's Sixth Amendment right to counsel had attached on June 11, 1998. As a result, his waiver of counsel on June 23, 1998, without the presence or advice of counsel, was invalid. Consequently, the statement he gave to the Carlisle detectives must be suppressed. Severance of Trials. The Commonwealth has served notice that it intends to try the Defendant along with a co-defendant, Jermaine Watkins. The Defendant has moved to sever on the basis that a joint trial would prejudice him because of antagonistic defenses and certain statements given by the co-defendant which implicate him in the murder. He also argues that fairness would dictate that we grant his motion to sever because this is a capital case. We are unpersuaded by either argument. Pennsylvania Rule of Criminal Procedure 1127 provides that defendants charged in separate informations may be tried together if the offenses charged are based upon the same act or NO. 98-2195 CRIMINAL TERM transaction. Rule 1128 allows the Court to order separate trials if it appears that any party may be prejudiced. The decision to sever lies within the sound discretion of the trial judge. Com. V- Morales, 508 Pa. 51, 494 A.2d 367 (1985). The fact that co-defendants have conflicting or antagonistic defenses is not sufficient to warrant separate trials. Com. v. Lambert, 529 Pa. 320, 603 A.2d 568 (1992). Nor is the fact that the defendants intend to exculpate themselves by inculpating the other sufficient grounds for severance. Com. v. King, 721 A.2d 763 (Pa. 1998). Furthermore, where, as in the instant case, the defendants have been charged with a conspiracy, a joint trial is preferred. Com. v. Chester, 526 Pa. 578, 587 A.2d 1367 (1991). Defense counsel argues that the admission of the co- defendant' s statement into evidence may violate Defendant's Sixth Amendment right to confrontation if the co-defendant elects not to testify. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). However, we are satisfied that any .Bruton violation can be avoided by an appropriate redaction of the statement as well as a limiting instruction to the jury. Com. v. Washington, 547 Pa. 550, 692 A.2d 1018 (1997). Finally, the Defendant argues that since he is on trial for his life, fairness would require that he have a separate jury. However, we can find no basis in law for this position. To the contrary, defendants charged with capital murder have often been NO. 98-2195 CRIMINAL TERM tried together.3 Where, as here, the defendants are charged with several identical crimes, including conspiracy, the circumstances giving rise 'to the crimes are identical and the witnesses necessary to prove the crimes are the same, joint trials are appropriate and preferred. Com. v. King, .supra.; Com. v. Lee, 541 Pa. 260, 662 A.2d 645 (1995). Therefore, the Defendant's request to sever this case from that of his co-defendant Jermaine Watkins is denied. Constitutionality of Sections of the Death Penalty Statue. Defendant asserts that the aggravating'factor of "knowingly created a grave risk of death to another person in addition to the victim of the offense" contained in 42 Pa. C.S.A. § 9711 (d) (7) is unconstitutionally vague. This exact argument was addressed and rejected by the Pennsylvania Supreme Court in ..C..ommonwealth v. Wharton, 530 Pa. 127, 607 A.2d 710 (1992). We are bound by that decision. Defendant also asserts that the victim impact provisions contained in 42 Pa. C.S.A. § 9711(c)(2) are unconstitutional.4 We note, however, that Section 9711 deals with procedure "[a]fter 3The King, Chester, Washington and Lee cases cited in this opinion all involved murder trials where a motion to sever had been denied and one or both of the defendants received a sentence of death. 4The parties concede that there is no precedent which binds us since no appellate Court has yet decided this issue. However, the identical issue is presented in an appeal currently pending in the Pennsylvania Supreme Court. ..Com. v. Means, No. 54 ED Appeal Docket 1997. NO. 98-2195 CRIMINAL TERM a verdict of murder of the first degree is recorded .... " 42 Pa. C.S.A. § 9711(a)(1). As such, the provisions contained therein do not come into play unless and until the Defendant is convicted of first degree murder. Therefore, we decline to address the constitutional attack on the validity of 42 Pa. C.S.A. § 9711(c)(2) at the current time. ORDER OF COURT AND NOW, this 5TH day of MAY, 1999, after hearings on Defendant's Omnibus Pretrial Motion, and for the reasons set forth in the accompanying opinion, it is hereby ordered and directed as follows: 1) Defendant's statement given to the Carlisle Police on June 23, 1998 is SUPPRESSED. 2) Defendant's request to be tried separately from his co- defendant Jermaine Watkins is DENIED. 3) Defendant's request that we declare Section 9711(d)(7) of the Judicial Code [42 Pa. C.S.A. § 9711(d)(7)] to be unconstitutional is DENIED. 4) We reserve ruling upon the constitutionality of the victim impact provisions contained in 42 Pa. C.S.A. 9711(c)(2). By the Court, /s/ Edward E. Guido Edward E. Guido, J. District Attorney Hubert X. Gilroy, Esquire For the Defendant