Loading...
HomeMy WebLinkAbout97-0576 criminalCOMMONWEALTH Vo IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA SAMUEL MOSLEY IN RE: 97-0576 CRIMINAL TERM PETITION FOR POST-CONVICTION RELIEF BEFORE BAYLEY, J. OPINION AND ORDER OF COURT BAYLEY, J., November 15, 1999:-- Petitioner, Samuel Mosley, filed this petition for relief under the Post-Conviction Relief Act, 42 Pa.C.S. Section 9541 et seq. Counsel was appointed and a hearing was conducted on November 4, 1999. Petitioner was convicted by a jury on November 6, 1997, of unlawful delivery.of 24.5 grams of cocaine, a schedule II controlled substance,~ and criminal conspiracy with Robert Cobaugh to deliver cocaine on July 30, 1996.2 Petitioner was sentenced on January 27, 1998, on the count of unlawful delivery of cocaine, to make restitution in the amount of $1,100 and undergo imprisonment in a state correctional institution for not less than three years or more than six years. No sentence was imposed on the conspiracy count that merged with the count of unlawful delivery of cocaine. On February 6, 1998, petitioner filed a post-sentence motion in this court alleging that (1) the verdict was against the weight of the evidence, and (2) after-discovered evidence 1. 35 P.S. § 780-113(a)(30). 2. 18 Pa.C.S. § 903. 97-0576 CRIMINAL TERM warranted the grant of a new trial. A hearing was conducted on March 3, 1998, on the after-discovered evidence claim. Petitioner's post-trial motion was denied by an order dated March 24, 1998.3 The Superior Court of Pennsylvania affirmed the judgment of sentence on November 19, 1998.4 Petitioner now maintains that his trial counsel was ineffective for failing to call Robert Cobaugh as a witness on his behalf. As set forth in the opinion dated March 24, 1998, in support of this court's order denying defendant's post-sentence motion, the evidence at trial in a light most favorable to the Commonwealth was as follows. Undercover Agent Daniel Peiper was introduced to Bob Cobaugh by Tim Smith. At the time, Smith, an admitted cocaine dealer, was a confidential informant working with Peiper. On July 30, 1996, Peiper met Cobaugh in Duncannon for the purpose of purchasing cocaine from him. Peiper drove Cobaugh to the Borough of Wormleysburg where Cobaugh was to meet a supplier. Upon arriving in Wormleysburg, Peiper parked his car next to a restaurant. He handed Cobaugh $1,100 in cash. At approximately 10:50 p.m., Cobaugh got out of the car and walked on Front Street to the corner of the Market Street bridge that leads to Harrisburg. After standing at the corner of the bridge for some time, Cobaugh started to walk back toward Agent Peiper. At approximately 11:08 p.m., Cobaugh walked to the driver's side of a parked van and talked to a man who was in the driver's seat. Cobaugh then went around to the passenger side of the van and got inside the vehicle. The van was registered to defendant Samuel Mosley. At approximately 11:10 p.m., Cobaugh got out of the van and walked directly to the vehicle of Agent Peiper. He got into the passenger side and handed Agent Peiper a bag 3. Commonwealth v. Mosley, 47 Cumberland L.J. 190 (1998). 4. Commonwealth v. Mosley, 734 A.2d 438 (Pa. Super. 1998). -2- 97-0576 CRIMINAL TERM containing 24.5 grams of cocaine. Peiper then drove Cobaugh back to Duncannon. Cobaugh was under surveillance by law enforcement officers during the entire time he was outside of Peiper's vehicle. These officers, however, could not see if a transaction took place between Cobaugh and the driver of the van while Cobaugh was inside the vehicle. After Cobaugh got out of defendant's van, the van went across the Market Street bridge toward Harrisburg. A surveillance agent pulled along the right side of the van when it was stopped for a traffic light where the bridge meets Front Street in the City of Harrisburg. The driver was the only person in the van. The Agent looked directly at the driver who looked directly at him for approximately five seconds. The Agent identified defendant, Samuel Mosley, as the person driving the van.~ 5. Defendant did not testify or present any evidence at trial· Petitioner's original effort to secure a new trial on a claim of after-discovered evidence is inextricably linked to his current claim seeing post-conviction relief. Robert Cobaugh has testified that: ·.. he was a childhood friend of defendant. In July of 1996, he had known Tim Smith for a few months. Smith introduced him to Daniel Peiper, who he did not know was an undercover agent .... defendant called him a day or so before July 30, 1996, about buying a quarter ounce of marijuana. He told Mosley that he would call him back when he had the marijuana .... Tim Smith got the marijuana and arranged for Peiper to take Cobaugh to Wormleysburg to sell it to Mosley. On July 30, Cobaugh called Mosley and told him that he had the marijuana and to meet him in Wormleysburg in an hour .... at the same time Smith gave him the marijuana to sell to Mosley he gave him cocaine to sell to Peiper.' ·.. Smith told him that 'we are going to make it look like you are getting the cocaine from Mosley.' Cobaugh was to sell the cocaine to Peiper for $1,100 after he met Mosley in Wormleysburg. ·.. he felt obligated to help Smith, therefore, he was willing to go through the ruse when selling the cocaine to Peiper. He and Peiper went to Wormleysburg where he met Mosley in Mosley's van. He sold Mosley a quarter ounce of marijuana for $45. He then returned to Peiper's vehicle and gave Peiper the cocaine for which Peiper had given him $1,100 to pay Mosley. After returning to Ducannon, Mosley gave Tim -3- 97-0576 CRIMINAL TERM Smith the $1,100 Peiper had given him for the cocaine. [He] was arrested for these same charges before Mosley's trial began .... on the day before defendant's trial, Mosley's lawyer came to see him in prison. The lawyer asked him if Mosley had delivered the cocaine. Cobaugh testified that he did not answer that question. The lawyer wanted to know if he would help Mosley, and [he] told him that he was not sure if he could. Later in his testimony, Cobaugh stated that: [h]e told Mosley's lawyer that he was not going to testify .... he testified that he did not tell Mosley's attorney what happened because he did not know if it would make it any worse for himself if he said he had delivered the cocaine. On the day of Mosley's trial, [he] was taken to a holding cell in the courthouse where the trial was being conducted. However, he was not called to testify. In the post-conviction hearing on November 4, 1999, this testimony of Robert Cobaugh taken at the March 3, 1998, hearing on the claim of after-discovered evidence was incorporated into the record of this case. Petitioner, Samuel Mosley, then testified that prior to his trial he told his trial counsel that he had met Bob Cobaugh on July 30, 1996, for the purpose of purchasing marijuana, and that he did not know anything about the alleged cocaine transaction that occurred at about the same time. Petitioner testified that he asked his trial counsel to talk to Cobaugh about the incident because Cobaugh knew what happened. Petitioner further testified that on two occasions he took Cobaugh to his trial counsel's office, both without making an appointment, but both times trial counsel was not there. By the time his [petitioner's] trial started Cobaugh was incarcerated in the Cumberland County Prison waiting trial on the same charges which included a count that Cobaugh and petitioner had conspired to deliver cocaine to 97-0576 CRIMINAL TERM Agent Peiper on July 30, 1996. Petitioner testified that his trial counsel told him that he had talked to Cobaugh and that Cobaugh did not want to help him. Cobaugh was not called as a witness in petitioner's trial. Trial counsel testified at the post-conviction hearing that when he was preparing for trial he tried to locate Robert Cobaugh where petitioner told him he was living. His investigator was unable to find him. However, he learned that he had been arrested just before petitioner's trial started on November 6, 1999, so he talked to Cobaugh at the Cumberland County Prison the night before the trial. Trial counsel testified that because Cobaugh was charged with the same offenses as petitioner, he advised him that if he was called as a witness in petitioner's trial that he could invoke his privilege under the Fifth Amendment to the United States Constitution. Trial counsel testified that Cobaugh said that he would not tell him what happened. Accordingly, not knowing what Cobaugh would testify to, much less whether he would claim his Fifth Amendment privilege, he decided not to attempt to call him as a witness. Trial counsel testified that subsequent to petitioner's trial Cobaugh provided him with an affidavit which prompted him to file the motion for a new trial based on after-discovered evidence. Cobaugh's attorney then told trial counsel that he could call Cobaugh as a witness at the post- sentence hearing, which he did on March 3, 1998. In addressing the after-discovered evidence issue, we stated in the opinion denying petitioner's post-sentence motion: Cobaugh's proposed testimony is not merely corroborative or -5- 97-0576 CRIMINAL TERM cumulative, and it would not be used solely for impeaching the credibility of any witness at trial. Mosley was convicted not only of delivering cocaine but also of conspiring with Cobaugh to deliver the cocaine to Detective Peiper. Cobaugh was subsequently convicted of the same offenses. Because the only evidence presented by defendant at the post- sentence hearing was the testimony of Cobaugh, and because he gave two versions of what he told defendant's counsel before defendant's trial: (1) that he was not sure if he could help Mosley, and (2) that he was not going to testify, we do not even have a straight story from him as to what he claims happened. The issue, therefore, is whether Cobaugh, the person who the jury found defendant conspired with to deliver cocaine, and who was subsequently convicted of the same offenses, can now offer testimony to vindicate defendant after defendant's conviction so as to require the grant of a new trial on the grounds of after-discovered evidence. In Commonwealth v. Frey, 512 Pa. 557 (1986), the defendant was convicted of murder in the first degree. The judgment of sentence of death was affirmed on direct appeal by the Supreme Court of Pennsylvania. The defendant then filed a motion for post-conviction relief on the basis of after-discovered evidence. Defendant sought to introduce a statement of a co-defendant, Charles Zehring, that defendant maintained was exculpatory to him. Zehring, who was incarcerated while awaiting trial in the same case, was not called as a witness at defendant's trial. Zehring eventually pleaded guilty to murder and was sentenced. The Supreme Court of Pennsylvania rejected defendant's claim, stating: Appellant has failed to establish that the information contained in Zehring's statement was unavailable to him at trial. This is not a case of true after-discovered evidence, i.e., new evidence coming to light, after trial, about which the defendant was unaware. If the events recounted in Zehring's statement actually occurred, appellant was obviously aware of them since appellant was a party to these events. Moreover, at the time of his trial appellant was aware that Zehring was in custody awaiting trial for his participation in this matter and thus subject to subpoena if the defense had chosen to call him as a witness. The explanation for failing to call Zehring Was that at the time of the trial it was believed that Zehring would be uncooperative because of his, Zehring's, personal situation at the time. The failure to present Zehring was not due to his unavailability, but rather a considered tactical judgment not to use that witness during the trial. We are not here faced with the question as to whether a -6- 97-0576 CRIMINAL TERM potential witness who invokes the Fifth Amendment is properly considered an unavailable witness for the party calling that witness. Compare Commonwealth v. Sanabria, 487 Pa. 507, 410 A.2d 727 (1980) (the Court was evenly divided on whether a co- defendant's invocation of the Fifth Amendment renders his subsequent testimony unavailable for purposes of section 3(c)(13) of the former Post Conviction Hearing Act). In this instance appellant did not attempt to call Zehring as a witness so that it is only speculation that, if called, Zehring would have invoked his Fifth Amendment privileges. We will not permit speculation as to such a critical fact. Thus, we need not here address the question of the 'unavailability' of a witness who in fact invokes the privilege against self- incrimination. Id. at 564-65 (citations omitted). The Supreme Court further stated that: Not only does the record fail to establish that this testimony was not 'after-discovered,' it is also not of such a nature and character that a different verdict would likely have resulted .... IT]he fact that this statement was given by a convicted co- defendant in this crime who only made the statement after he had been sentenced for his participation and therefore had nothing to lose by attempting to aid the cause of his co-conspirator raises a significant question as to its reliability. We have long recognized that post-verdict accomplice testimony must be viewed with a jaundiced eye. Id. at 565. As in Frey, the present case does not involve new evidence coming to light after trial about which the defendant was unaware. If the events recounted in Cobaugh's testimony actually occurred, defendant was obviously aware that he delivered marijuana to him instead of cocaine. Moreover, at the time of his trial, defendant was aware that Cobaugh was in custody and in a holding cell in the courthouse. Again as in Frey, the explanation for failing to call Cobaugh was that defendant believed that he would be uncooperative because of his personal situation at that time. Thus, the failure to call Cobaugh was not due to his unavailability, but rather a considered tactical judgment not to use him at -7- 97-0576 CRIMINAL TERM trial. Defendant could have subpoenaed Cobaugh and called him initially without the jury being present. It could then have been determined if Cobaugh would invoke his Fifth Amendment privilege. Similar to Frey, defendant did not call Cobaugh as a witness so it is only speculation that, if called, he would have invoked his Fifth Amendment privilege. Furthermore, defendant and Cobaugh, in separate trials, have been convicted of conspiring with each other to deliver the cocaine to Agent Peiper. This raises a significant question as to the reliability of Cobaugh. Under all of these circumstances, we hold that defendant is not entitled to a new trial based on after-discovered evidence because two requirements for the admission of such evidence have not been met: (1) it was not discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence, and (2) it is not of such a nature and character that a different verdict would likely result if a new trial is granted.6 6. Even if Cobaugh had been called by defendant at trial and outside of the presence of the jury had exercised his Fifth Amendment privilege against self-incrimination, defendant would not have grounds for post-sentence relief. In Commonwealth v. Sanabria, 487 Pa. 507 (1980), the Supreme Court of Pennsylvania split three-three on whether a co-defendant's invocation of the Fifth Amendment makes his testimony' unavailable for trial. In an opinion in support of affirmance which resulted in a trial court's order being affirmed, the Supreme Court stated: Myers had the opportunity to testify in behalf of Sanabria during Sanabria's trial. Instead, he deliberately and expressly chose not to testify at that trial and invoked his fifth amendment privilege. By allowing a convicted criminal to have a retrial where his original trial was without blemish, simply to admit the testimony of a co-felon, who also was convicted of the same crime and who invoked his right not to testify as a witness at the time of the original trial, the Court condemns the Commonwealth to endless retrials and prevents a conviction from ever being final .... This situation is so fraught with abuse that it threatens to undermine our entire criminal justice process. Id. at 510. In Commonwealth v. Kimball, 724 A.2d 326 (Pa. 1999), the Supreme Court of Pennsylvania stated that the test for proving ineffective assistance of counsel in a -8- 97-0576 CRIMINAL TERM PCRA petition is: The petitioner must still show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. This requires the petitioner to show: (1) that the claim is of arguable merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and, (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. What we hold today is that, where the petitioner has demonstrated that counsel's ineffectiveness has created a reasonable probability that the outcome of the proceedings would have been different, then no reliable adjudication of guilt or innocence could have taken place. (Emphasis added.) We believe trial counsel's testimony that when he talked to Cobaugh the night before petitioner's trial, Cobaugh, who at the time was pending trial on the same offenses as petitioner, would not tell him what happened with respect to the transaction on July 30, 1996, involving Agent Peiper. Obviously, trial counsel could not risk attempting to call Cobaugh as a witness to even determine if he was going to exercise his privilege under the Fifth Amendment because Cobaugh would not tell him if he would absolve or implicate petitioner in the cocaine delivery on July 30, 1996. Accordingly, trial counsel had a reasonable strategy for not trying to call Cobaugh as a witness. Cobaugh has now been convicted of the same offenses for which petitioner was convicted; the delivery of cocaine on July 30, 1996 to Agent Peiper, and of conspiring to deliver that cocaine with Samuel Mosley. To paraphrase the Supreme Court of Pennsylvania in Commonwealth v. Sanabria, 487 Pa. 507 (1980), by allowing a convicted criminal to have a retrial where his original trial was without blemish, simply -9- 97-0576 CRIMINAL TERM to admit the testimony of a co-conspirator, who was subsequently convicted of the same drug delivery and conspiracy as was petitioner, and who would not before petitioner's trial tell petitioner's counsel what had occurred involving the alleged criminal incident, condemns the Commonwealth to endless retrials in such cases and prevents a conviction from ever being final. This situation is so fraught with abuse that it threatens to undermine the criminal justice process. In the context of this post-conviction petition, petitioner has not demonstrated that his counsel in not attempting to call Robert Cobaugh as a witness created a reasonable probability that if he had called him that the A reliable adjudication of guilt outcome of the proceeding would have been different. has taken place. AND NOW, this __ for post-conviction relief, IS DENIED. Jaime Keating, Esquire For the Commonwealth Darrell C. Dethlefs, Esquire For Petitioner :saa ORDER OF COURT _..[.~day of November, 1999, the petition of Samuel Mosley Edgar B. BaYl~y,-J.(~ -10-