HomeMy WebLinkAboutCP-21-CR-0000085-2009
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V.:
:
ELWOOD C. WILLIARD : NO. CP-21-CRIMINAL 0085 – 2009
:
:
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
Guido, J., May , 2010
The defendant was convicted by a jury of several drug related charges stemming
from his participation in a heroin delivery scheme. On December 1, 2009 he was
sentenced to imprisonment of 3 to 15 years. He has filed this timely appeal in which he
raises numerous issues. Several of the issues involve the claimed ineffectiveness of his
trial counsel. Since they were not raised prior to the instant appeal, we are not in a
position to comment on them. The remaining issues include our alleged error in 1)
refusing to grant the defense request for a continuance; 2) denying the defendant’s
motion for a mistrial; and 3) admitting into evidence certain illegal drugs without the
1
proper chain of custody having been established. We will address those issues in this
opinion.
Chain of Custody.
We will address the last allegation of error first. We simply note that defendant’s
counsel never made an issue of the chain of custody nor did he object to the introduction
1
See Defendant’s Concise Statement of Matters Complained of on Appeal.
CP-21-CRIMINAL 0085 - 2009
2
of any of the drug exhibits. If we did not rule upon the issue we are not in a position to
address it in this opinion.
Refusal to Grant Continuance.
The parties were scheduled to pick a jury at 9:30 a.m. on the morning of
September 30, 2009. Immediately prior to the commencement of jury selection defense
counsel requested a continuance on the grounds that the Commonwealth had not
complied with the discovery requirements imposed by the Rules of Criminal Procedure.
Specifically, he complained that he had not received a copy of the defendant’s
handwritten inculpatory statement until the afternoon before trial. We denied his request
for several reasons.
In the first instance, we were not convinced that the Commonwealth had violated
the discovery rules. The pertinent Rule provides in relevant part:
(B)Disclosure by the Commonwealth.
(1)Mandatory. In all court cases, on request by the defendant, . . . the
Commonwealth shall disclosed to the defendant’s attorney all of
the following requested items or information, provided they are
material to the instant case. The Commonwealth shall, when
applicable, permit the defendant’s attorney to inspect and copy or
photograph such items.
. . .
(b)any written confession or inculpatory statement, or the substance
of any oral confession or inculpatory statement, and the identity of
the person to whom the confession or inculpatory statement was
made that is in the possession or control of the attorney for the
Commonwealth;
Pa. R. Crim. P. 573 (B) (1) (b). Defendant’s counsel acknowledged receiving a copy of
2
Trial Transcript, October 1, 2009, p. 161.
2
CP-21-CRIMINAL 0085 - 2009
3
the police report. The police report contained the oral statement given by the defendant
4
which was virtually identical to the written statement. The report also made clear that
the defendant prepared the written statement detailing his involvement in the drug
5
enterprise. We were of the opinion that the Commonwealth complied with its
responsibilities under Rule 573 (b) (1) (B) by providing defendant’s counsel with a copy
6
of the police report.
Even if there was a violation of the Rule, we could not see how the defendant was
7
prejudiced. As noted above, he was aware of the existence of the written statement as
well as the contents thereof. Counsel argued prejudice because his trial strategy was to
8
claim that the police were lying about the statements made by his client. He was
counting on the Commonwealth’s failure to produce the written statement to reinforce his
position. We were singularly unimpressed with this argument. Certainly his client was
aware that he had given a written statement. Furthermore, counsel could have filed the
9
appropriate motion to compel the production of the statement well in advance of trial.
He could not just wait and hope.
In view of the above we were not prepared to delay the trial to the next term of
court. This was especially true since 1) the request was made at the eleventh hour after
all the Commonwealth witnesses had appeared, and 2) the defendant had been granted
3
Trial Transcript, September 30, 2009, p. 5.
4
Trial Transcript, September 30, 2009, p. 5.
5
Trial Transcript, September 30, 2009, p. 5.
6
Once the defendant was aware of the existence of a written statement he could have taken steps to insist
that the Commonwealth allow him to inspect or copy it.
7
“(A) defendant seeking relief from a discovery violation must demonstrate prejudice.” Commonwealth v.
Johnson, 572 Pa. 283 815 A.2d 563 at 585 (2002).
8
Trial Transcript, September 30, 2009, p. 5.
9
See Pa. R.C.P. 573 (A) which requires that such motion be filed within 14 days after arraignment.
3
CP-21-CRIMINAL 0085 - 2009
continuances on three prior occasions. Under the circumstances we were satisfied that a
continuance of four hours was both sufficient and fair.
Denial of Mistrial.
The defendant appeared on the police radar when one of his clients died as a
result of an accidental heroin overdose. At the commencement of trial defense counsel
asked that we preclude the Commonwealth from referencing the death. The district
attorney argued that evidence of the overdose and subsequent investigation was necessary
to describe how the case began. He also contended that the packets of heroin found at the
10
scene of the death were similar to those recovered after the search of defendant’s home.
Counsel were able to resolve the matter and based upon their agreement we directed that
11
the incident be referred to as an “overdose” rather than a “lethal or fatal overdose.”
The decedent’s girlfriend testified as a witness for the Commonwealth. She
described how she and the decedent (Dan) had purchased heroin from the defendant’s
home on the night of November 13, 2008. They eventually returned to Dan’s house
where they snorted it together before she went home. Thereafter the following exchange
took place between the assistant district attorney and the witness:
th
Q.We’ll go forward now to November 14, when you showed
up at Dan’s house on York Road. Did you see any State
Police there?
A.Yeah. It looked like somebody died.
Q. Did you talk to the State Police?
A. Um-hum.
Q. Did you tell them about what you and Dan had done the
night before?
A. Yes.
Q. Did you agree to go with the State Police to the Pine Road
address?
A. (Witness nods affirmatively.)
10
Trial Transcript, September 30, 2009, p. 16.
11
Trial Transcript, September 30, 2009, p. 16.
4
CP-21-CRIMINAL 0085 - 2009
Q. Is that a yes?
12
A. Yes. Sorry.
The district attorney did not dwell upon, nor did defense counsel object to, the passing
reference to death. The witness then went on to recount how she helped the State Police
in the subsequent investigation.
The witness was obviously distraught during the direct examination. She became
even more so during cross examination. Defendant’s counsel was attempting to impeach
her credibility by pointing out inconsistencies between her testimony at trial and her
rendition of the events as contained in the state police report. The objectionable
exchange went as follows:
Q.So, you didn’t actually see who he exchanged the drugs with?
A.Yeah. They didn’t go inside the house.
Q.What’s that?
A.They did not go inside the house.
Q.Right in the troopers’ report it says, according to you, that the
transaction took place inside the house.
A.It didn’t.
Q.Do you dispute that you told the troopers that?
A.Yeah.
Q.So, when the troopers said inside the house, that’s incorrect?
A.Correct. I was also on heroin at the time, and my boyfriend
13
was just dead.
The defendant’s counsel requested a mistrial. In response to our inquiry the
district attorney assured us that he had instructed the witness not to mention the death of
her boyfriend. We declined to grant the mistrial, but offered to give a curative
14
instruction. Defense counsel declined the offer.
The law with respect to granting a mistrial is well settled. “(S)uch an extreme
remedy is appropriate only when an incident ‘is of such a nature that its unavoidable
12
Trial Transcript, September 30, 2009, p. 40.
13
Trial Transcript, September 30, 2009, p. 45 (emphasis added).
14
Trial Transcript, September 30, 2009, p. 46.
5
CP-21-CRIMINAL 0085 - 2009
effect is to deprive the (defendant) of a fair and impartial trial’.” Commonwealth v.
Powell, 598 Pa. 224, 956 A.2d 406 at 421 (2008) quoting from Commonwealth v.
Montgomery, 533 Pa. 491, 626 A.2d 109 at 113 (2002). In making that determination we
should “consider the nature of the reference and whether or not the commonwealth
intentionally elicited the testimony.” Id.
In the instant case the testimony came during cross examination. It was blurted
out by the witness in an emotional defense of her credibility, despite specific instructions
to the contrary by the Commonwealth. We were satisfied that the reference was not so
prejudicial as to deprive the defendant of a fair trial. We were further satisfied that any
prejudicial effect could have been remedied by a curative instruction. Therefore, we
denied the request for a mistrial.
__________________ ________________________
Date Edward E. Guido, J.
Derek Clepper, Esquire
For the Commonwealth
Karl Rominger, Esquire
For the Defendant
:sld
6