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HomeMy WebLinkAbout94-0302 CriminalCOMMONWEALTH Ve ROBERT CLARK OTN: E505181-5 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 94-0302 CRIMINAL TERM CHARGE: (A) POSSESSION WITH INTENT TO DELIVER/ DELIVERY (B) CONSPIRACY (C) CRIMINAL ATTEMPT IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 ON DEFENDANT'S MOTION TO SEVER Oler, J., May 14, 1997. In this criminal case, Defendant was charged with possession with intent to deliver, or delivery, of cocaine (Count A), conspiracy to violate the drug act (Count B), and attempt to possess with intent to deliver, or to deliver, cocaine (Count C). He was found guilty of all charges following a jury trial before the Honorable Kevin A. Hess of this court on September 6, 1996. Judge Hess imposed sentence on October 15, 1995. Following disposition of a post-sentence motion,~ Defendant has appealed to the Superior Court from the judgment of sentence. One of the matters complained of on appeal is a pretrial ruling by the writer of this opinion denying Defendant's motion to sever the attempt count.2 This opinion in support of the writer's pre-trial ruling is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). ~ Order of Court, February 14, 1997 (Hess, J.). 2 Statement of Matters Complained of on Appeal, paragraph 1 (filed March 31, 1997). NO. 94-0302 CRIMINAL TERM PROCEDURAL HISTORY; STATEMENT OF FACTS The three-count information was filed in this case on July 8, 1994. The information alleged as follows, in pertinent part: COUNT A POSSESSION WITH INTENT TO DELIVER/ DELIVERY OF A CONTROLLED SUBSTANCE That the Defendant, Robert Clark, did unlawfully, wilfully and feloniously possess with intent to deliver and/or did deliver a controlled substance; that is, on or about June, 1992 through September, 1992, in the Borough of Carlisle, Cumberland County, Pennsylvania, Robert Clark, a person not being authorized by law to deliver the controlled substance set forth herein, did feloniously possess with intent to deliver and/or did deliver cocaine, a Schedule II Controlled Substance, in violation of section 13(a)(30) of the Controlled Substance, Drug, Device and Cosmetic Act, an Act of April 14, 1972, P.L. 233, No. 64, as amended, 35 P.S. section 780- 113(a)(30). COUNT B CRIMINAL CONSPIRACY That the Defendant, Robert Clark, did agree with one or more other persons that they or one or more of them would engage in conduct which constitutes a crime or an attempt or solicitation to commit a crime, that is, on or about June, 1992 through September, 1992, in the Borough of Carlisle, Cumberland County, Pennsylvania, Robert Clark did conspire and agree with Paul Perry, Anderson Brooks, Marvin Campbell and others that they or one or more of them would engage in conduct constituting violation of the Pennsylvania Controlled Substance, Drug Device and Cosmetic Act, and in pursuance of such conspiracy one or more overt acts were committed, all of which is in violation of Title 18 Pa. C.S. §903. NO. 94-0302 CRIMINAL TERM COUNT C C~IMINAL ATTEMPT That the Defendant, Robert Clark, did unlawfully, wilfully and feloniously attempt to possess with intent to deliver and/or did attempt to deliver a controlled substance; that is, on or about February and March of 1993 in the Borough of Carlisle, Cumberland County, Pennsylvania, Robert Clark, a person not being authorized by law to deliver the controlled substance set forth herein, did feloniously attempt to possess with intent to deliver and/or did attempt to deliver cocaine, a Schedule II Controlled Substance, in violation of section 13(a)(30) of the Pennsylvania Controlled Substance, Drug, Device and Cosmetic Act, and section 901 of the Crimes Code, 18 Pa. C.S. S901. Defendant was formally arraigned on May 9, 1996.3 On June 24, 1996, Defendant filed a motion to sever the attempt count. A hearing was held on the motion on July 1, 1996. At the hearing, counsel stipulated to the factual basis upon which the Commonwealth relied for a joinder of the offenses for trial. The stipulation was stated by the Commonwealth's attorney as follows: [T]here are three separate charges against Mr. Clark. The first charge is possession with intent to deliver, delivery of a controlled substance, and the information lists a time period of June 19, 1992 through September 1992 for that charge. The second charge is a count of criminal conspiracy to possess with the intent to deliver, delivery of a controlled substance, also cocaine, and the time period for that is June 1992 through 3 Defendant had been the subject of a bench warrant (Sheely, P.J.) and extradition proceedings. NO. 94-0302 CRIMINAL TERM September 1992, and the parties involved with that are Paul Perry, Anderson Brooks, Marvin Campbell and Robert Clark. The third count if a count of criminal attempt to possess cocaine with the intent to deliver, and the time period for that is February and March of 1993. Basically, ... the facts we would stipulate to is that it is alleged on Counts A and B that in approximately July of 1992, specifically of the last two weeks of July of 1992, Robert Clark, from Tampa, Florida, was present in Carlisle, Pennsylvania; that Robert Clark previously had known an Anderson Brooks in Carlisle, Pennsylvania; and during that time period, Robert Clark did have contact with Mr. Brooks at Mr. Brooks' establishment here in Carlisle, Pennsylvania. During that time period it would be alleged that Robert Clark delivered approximately five ounces of cocaine to Anderson Brooks in his car, to his establishment here in Carlisle, for the purpose of having Anderson Brooks deliver that to a Marvin Campbell and also a Paul Perry, that the cocaine itself was fronted to Mr. Brooks; and that Mr. Brooks would then make payment to Mr. Clark, after he received payments from Mr. Perry and from Mr. Campbell. The facts would then show that on three separate occasions in July and August of 1992, Mr. Anderson Brooks did send money by Western Union to Robert Clark in Florida. The money was sent from the All American truck plaza here outside of Carlisle, Pennsylvania, and that the name the money was sent to, on these occasions, Robby Clark, Robber, R-o-b-b-e-r, Clark and Robin Clark, that the money was sent from an individual, a Sam Jones, and then he put down on all three his address being 160 North Pitt Street, Carlisle, Pennsylvania. And more specifically on July 30th, 1992, $1,400.00 was sent, on August 10th, 1992, $700.00 was sent, and on August 26th, 1992, $350.00 was sent. NO. 94-0302 CRIMINAL TERM Subsequent to these transactions or alleged transactions, on February 3rd of 1993, the agents from the office of Attorney General Bureau of Narcotics Investigations in conjunction with the Internal Revenue Service, executed various search warrants in Carlisle, including a search warrant at the residence of Anderson Brooks at 160 North Pitt Street. And at that time, as something that was discovered, one of the money orders that I just made mention to was also discovered at that time with a piece of paper. On the piece of paper it had the name of Sam Jones, it had the initials R.C., it also had the name Robby Clark, and it had several telephone numbers. One of those telephone numbers being 813-783- 1837. Following the execution of the search warrant, Mr. Brooks agreed to cooperate with the Commonwealth and its investigation, and his cooperation included pro-active measures where he made numerous consensual calls to Robert Clark in Florida, and many of these telephone calls were made to this telephone number that was discovered on this document, specifically the telephone number of 813-783- 1837. The purpose for those telephone calls was to make arrangements for Mr. Clark to make a delivery of 10 ounces of crack cocaine or powder cocaine to Carlisle, Pennsylvania from Florida, that he would deliver that to Anderson Brooks, and then Anderson Brooks was going to deliver that to Paul Perry and Marvin Campbell. And in the course of these consensual telephone calls, arrangements were made for Mr. Clark to wire $2,000.00 -- strike that. Arrangements were made for Mr. Brooks to wire $2,000.00 to Mr. Clark in Florida. The procedures followed were the same as before, that Mr. Brooks did this at the All American truck plaza, that he utilized the name of Sam Jones, that it was sent to Robby Clark, and this was done under the guise of the Office of the Attorney General. They NO. 94-0302 CRIMINAL TERM actually provided the $2,000.00. was actually sent down. That money During these telephone conversations there was mention of the transactions that occurred during the summer, specifically there was a mention during one of these transactions about the cocaine being the same as he had gotten last time, and then because of reasons, either logistical or otherwise, Mr. Clark never did make this delivery of 10 ounces of crack cocaine to the authorities in Pennsylvania, and that's the reason why the criminal attempt charge was filed.4 Based upon the recited facts, and following argument by counsel, the court entered this order: AND NOW, this 1st day of July 1996, upon consideration of the Defendant's Motion To Sever Attempt Count and following a hearing at which the evidence to be presented by the Commonwealth in the case was recited by the Deputy Attorney General Shawn A. Wagner, Esquire, and at which both counsel presented legal arguments, the Defendant's motion to sever is denied. DISCUSSION Under Pennsylvania Rule of Criminal Procedure 1128, "[t]he court may order separate trials of offenses ..., if it appears that any party may be prejudiced by offenses ... being tried together." This rule provides the procedure whereby the court may, because of prejudice to a party, order separate trials of offenses ... 4 N.T. 3-6, Hearing, July 1, 1996. Defendant's counsel stipulated to these facts for purposes of facilitating disposition of the motion, without conceding that the Commonwealth would be able to prove all of its allegations at trial. Id. 7-8. 6 NO. 94-0302 CRIMINAL TERM that otherwise would be properly together under Rule 1127. tried Comment, Pa. R. Crim. P. 1128. Under Pennsylvania Rule of Criminal Procedure 1127(A)(1), it is provided as follows: Offenses charged in separate indictments or informations may be tried together if: (a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or (b) the based on transaction. offenses charges are the same act or The general rules as to when evidence of one offense may be admissible in a trial for another offense have been summarized as follows: Although evidence of other crimes, wrongs, or acts is not admissible to prove criminal character or propensity as circumstantial evidence of conduct, such evidence is not absolutely inadmissible. Evidence of other crimes, wrongs, or acts may be admissible for other purposes. Pennsylvania courts have established five exceptions to the general rule excluding evidence of other crimes, wrongs, or acts. The courts have traditionally held that such evidence may be admissible if relevant to show 1) motive, 2) intent or knowledge, 3) absence 7 NO. 94-0302 CRIMINAL TERM of mistake or accident, 4) common scheme or plan, or 5) identity.5 "When the evidence is relevant and important to one of these five issues, it is generally conceded that the prejudicial effect may be outweighed by the probative value." Commonwealth v. Peterson, 453 Pa. 187, 198, 307 A.2d 264, 269-70 (1973). In the context of a consolidated trial (as opposed to a trial in which the Commonwealth proposes to introduce evidence of offenses not being simultaneously tried), Judge Hoffman has made these interesting observations for the Superior Court: While the consolidated trial setting does not change the standard for determining the admissibility of other crimes evidence, it does subtly influence the balance of factors. For instance, the danger that the accused may be forced ';to answer additional charges which were not included in the indictment returned against him" is not present. Similarly, considerations concerning "the convincingness of the evidence that ... the accused was the actor" are considerably reduced because the prosecution has committed itself to proving each of the charged crimes beyond a reasonable doubt. Further, because consolidation promotes judicial economy, "the interests of judicial expedience must be weighed against the possibility of resultant prejudice to the [defendant]." Other factors, however, such as the prosecution's actual need for the evidence, the logical connection between the crimes and the issues in the case, and the possibility of prejudice, remain the same. 5 Packel & Poulin, Pennsylvania Evidence S405.1, at 161 (1987) (citations omitted). 8 NO. 94-0302 CRIMINAL TERM Commonwealth v. Taylor, 299 Pa. Super. 113, 120, 445 A.2d 174, 177 (1982) (citations omitted). The Pennsylvania Supreme Court has summarized a trial court's main considerations in the area of consolidation and severance as follows: Where the defendant moves to sever offenses not based on the same act or transaction that have been consolidated in a single indictment or information, or opposes joinder of separate indictments or informations, the court must ... determine: whether the evidence of each of the offenses would be admissible in a separate trial for the other; whether such evidence is capable of separation by the jury so as to avoid danger or confusion; and, if the answers to these inquiries are in the affirmative, whether the defendant will be unduly prejudiced by the consolidation of offenses.6 "The courts have held that consolidation of separate informations for trial is a matter of discretion with the trial judge and that the exercise of this discretion will be reversed only for manifest abuse of discretion or prejudice and clear injustice to the defendant." Commonwealth v. Boyd, 315 Pa. Super. 308, 315, 461A.2d 1294, 1298 (1983). The same rule applies to severance motions. Commonwealth v. Vickers, 260 Pa. Super. 469, 475, 394 A.2d 1022, 1025 (1978). In the case of Commonwealth v. Taylor, 299 Pa. Super. 113, 445 A.2d 174 (1982), the Pennsylvania Superior Court upheld a lower 6 Commonwealth v. Lark, 518 Pa. 290, 302, 543 A.2d 491, 496- 97 (1988). 9 NO. 94-0302 CRIMINAL TERM court's consolidation for trial of a June 1978 drug offense with two April 1978 drug offenses, where (a) each offense involved defendant, a certain paid informant and a certain undercover police officer, (b) defendant was a buyer of cocaine in the earlier transactions and a trader of liquid cocaine for a noncontrolled substance in the later transaction, (c) discussions of the June transaction followed the earlier transactions, and (d) the defense was entrapment.? The Superior Court accepted the Commonwealth's position that the June and April "transactions were so intertwined into a common scheme or plan that 'proof of one tend[ed] to prove the other.'" Id. at 121, 445 A.2d at 178. In the present case, a distinctive scheme or plan was common to each of the offenses. Each offense involved an understanding whereby (a) Defendant was to provide cocaine to Anderson Brooks in Carlisle, Pennsylvania, for redelivery to Marvin Campbell and Paul Perry, (b) Brooks was to receive payment from Marvin Campbell and Paul Perry for the drugs, and (c) Brooks was to transmit payment by wire, using the alias Sam Jones, to Defendant in Florida under a name similar, but not identical, to Defendant's, such as Robby Clark. ? The defense was not a significant factor as to consolidation; as the court pointed out, predisposition of a defendant is not pertinent to an entrapment defense in Pennsylvania. Commonwealth v. Taylor, 299 Pa. Super. 113, 120, 445 A.2d 174, 177 (1982). 10 NO. 94-0302 CRIMINAL TERM At least one conversation between Defendant and Brooks which related the criminal activity that had occurred in the earlier period to the criminal activity which was to occur in the later period was admissible on the issue of Defendant's guilt as to each period; and Defendant's receipt of money in Florida as "Robby Clark" on one occasion tended to establish the identity of the recipient of similarly directed money on another occasion. Evidence as to the earlier criminal activity in June through September also tended to negate the likelihood of a mistake on the Part of Defendant as to the nature of his subsequent financial transaction with Brooks in February and March. Finally, the factors mentioned by Judge Hoffman in Commonwealth v. Taylor, supra, as subtly influencing an "other-crimes" balancing test are present in this consolidated setting. In short, the court was of the view that severance was not appropriate on the theory that evidence as to one offense would not have been admissible as to another. The offense sought by Defendant to be severed was sufficiently distinct in terms of timing and the factor of police involvement as to be easily separated by a jury from the earlier offenses. And no undue prejudice to the Defendant was discernable to the court from the joinder of the offenses. For the foregoing reasons, the court declined to grant Defendant's motion to sever the attempt count. 11 NO. 94-0302 CRIMINAL TERM The Honorable Kevin A. Hess Shawn Wagner, Esq. Deputy Attorney General Drug Strike Force Legal Services Section 110 North 26th Street Harrisburg, PA 17103 Attorney for Commonwealth W. Darren Powell, Esq. 10 East High Street Carlisle, PA 17013 Attorney for Defendant : rc 12