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HomeMy WebLinkAboutCP-21-CR-0000347-2011 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-347-2011 V. : : CHARGE: 1. CRIMINAL SOLICITATION : TO CRIMINAL HOMICIDE (3 COUNTS); : 2. CRIMINAL ATTEMPT TO : CRIMINAL HOMICIDE; : 3. AGGRAVATED ASSAULT; : 4. BURGLARY : LANCE PATRICK GREENAWALT : OTN: T029948-2 : AFFIANT: TPR. BENJAMIN WILSON ORDER OF COURT nd AND NOW , this 22 day of March, 2012, upon consideration of the Defendant’s Omnibus Pre-Trial Motion, the briefs filed by the parties in support thereof and after hearing, IT IS HEREBY ORDERED AND DIRECTED that: 1. The Defendant’s Omnibus Pre-Trial Motion to Suppress Statement of Defendant is DENIED . 2. The Defendant’s Omnibus Pre-Trial Motion to Sever Charges and Request Change of GRANTEDDENIED Venue is in part and in part. Defendant’s Motion to Sever Charges is GRANTED.DENIED The Defendant’s Request for Change of Venue is . 3. The Defendant’s Omnibus Pre-Trial Motion to Suppress Auditory Wiretap DENIED Surveillance Tapes and Written Transcription of Auditory Surveillance Tapes is . By the Court, M. L. Ebert, Jr., J. Matthew P. Smith Chief Deputy District Attorney Michael Rentschler, Esquire Attorney for Defendant 2 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-347-2011 V. : : CHARGE: 1. CRIMINAL SOLICITATION : TO CRIMINAL HOMICIDE (3 COUNTS); : 2. CRIMINAL ATTEMPT TO : CRIMINAL HOMICIDE; : 3. AGGRAVATED ASSAULT; : 4. BURGLARY : LANCE PATRICK GREENAWALT : OTN: T029948-2 : AFFIANT: TPR. BENJAMIN WILSON IN RE: OMNIBUS PRE-TRIAL MOTION EBERT, J., March 22, 2012 – Facts On April 30, 2006, Daniel Keys was violently attacked by someone who was waiting inside his home in Adams County. Keys had boiling water thrown on his face and was severely beaten with a baseball bat. There was evidence at Keys’ residence that the attacker had entered through a window above an air conditioning unit in the rear of the home. Prior to the attack, Keys had been out to dinner with John Lloyd. John Lloyd was driving that evening and dropped Keys off at his home. Other than the attacker, John Lloyd was the last person to see Daniel Keys before the attack. The Defendant has been charged with Attempted Homicide, Burglary and Aggravated Assault here in Cumberland County based on these facts. In an unrelated matter, by complaint dated August 10, 2009, the Defendant was charged with Burglary, 2 counts of Criminal Trespass, Theft by Unlawful Taking and Receiving Stolen Property. One of the victims in that case was John Lloyd, who resided at 491 Cunningham Road in Freedom Township, Adams County, Pennsylvania. This is the same John Lloyd mentioned above. The Defendant had a jury trial in this matter and was found guilty of Burglary, Criminal Trespass and Theft by Unlawful Taking. The Honorable Michael George of Adams County Court of Common Pleas was the presiding Judge. Judge George sentenced the Defendant on April 22, 2010, to an aggregate sentence of 5 ½ years to 13 years in a State Correctional Institute. The Defendant was placed in the State Correctional Institute at Camp Hill to serve this sentence. At Camp Hill, the Defendant’s cell mate was Timothy Bryce. Bryce eventually told prison officials that the Defendant was soliciting him to commit several murders. The prison officials passed this information on to the State Police who interviewed Bryce. Bryce told the State Police that the Defendant often discussed the past events which resulted in his incarceration. He stated that the Defendant asked him to kill Judge Michael George who presided over his last trial, John Lloyd who was a past associate of the Defendant and also was involved in the case which led to his incarceration. Additionally, the Defendant told Bryce that he was the one who assaulted Daniel Keys and that he wanted him killed also. The State Police took this information to the District Attorney of Adams County. Since the Defendant was housed in the State Correctional Institution located Cumberland County, the Cumberland County District Attorney prepared an application for a wiretap. The application was presented to Superior Court Judge Correale Stevens who ordered the wiretap. A covert wiretap was installed in a cell at the State Correctional Institute – Camp Hill and Bryce and the Defendant were moved to this cell. The wiretap was conducted from September 21, 2010 to September 23, 2010. On October 28, 2010, Trooper Benjamin H. Wilson (“Trooper Wilson”) and Trooper Scott Denish (“Trooper Denish”, collectively “Troopers”) conducted an interview of Defendant 1 Lance Patrick Greenawalt (“Defendant”). The interview was based on two interrelated investigations: 1) Defendant’s solicitation of a previous cellmate, Tim Bryce, to commit murder, 1 Notes of Testimony, Pretrial Hearing, Oct. 3, 2011, 8 (hereinafter N.T. __). 2 and Defendant’s previous attempted homicide, aggravated assault, and burglary in Adams County, as well as, 2) Defendant’s allegation that Bryce had stolen books and court documents 2 from Defendant. The Troopers arrived on October 28, 2010, at the State Correctional Institution (“SCI”) Camp Hill and asked security to call Defendant Lance Patrick Greenawalt (“Defendant”) to be 3 questioned. Defendant was brought to a “standard 10 by 12 or 10 by 14” SCI Camp Hill security 4 office interview room with a wooden table, chairs, and a window. Defendant’s handcuffs were 5 removed and he was seated across the table from the Troopers. The Troopers introduced themselves and told Defendant they were meeting to “touch base” about his allegations against 6 Bryce. Trooper Wilson told Defendant “you’re free to leave, you don’t have to be here, I’m asking for your time, you can stop” and then read the Pennsylvania State Police’s “Rights 78 Warning and Waiver.”(“waiver form”) Defendant agreed and signed the waiver form. 9 Defendant then told Trooper Wilson that he gave permission for the interview to be recorded. 10 Trooper Wilson turned on the audio recorder and began the interview. The Troopers interviewed Defendant for approximately an hour and a half starting at 2:10 11 P.M. and ending around 3:25 P.M. During the interview, the Troopers took breaks at 2:30 P.M. 12 and 2:45 P.M. Trooper Wilson described the breaks as “quick” and “brief,” lasting no more 2 N.T. 8-9. 3 N.T. 9. 4 N.T. 8-9, 25. 5 N.T. 10, 26. 6 N.T. 10. 7 N.T. 11, 27; Commonwealth Exhibit 2 (hereinafter “Comm. Ex. __). Although Trooper Wilson refers to the form as a “PSP noncustodial rights warning waiver,” this Court notes that the actual form does not contain the language “noncustodial.” 8 N.T. 27. 9 N.T. 27, 46. 10 N.T. 27. 11 N.T. 13; Comm. Ex. 3 line 12, 2858. Exhibit 3 indicates the start time to be 2:10 P.M. and the ending time to be 3:25 P.M. 12 N.T. 13, 15, 18. 3 13 than a few minutes in length. The breaks taken by the Troopers broke the interview into three 14 parts as indicated by the three separate CD recordings. Part one of the interview, 2:10 P.M. to 2:30 P.M., was focused on the complaint filed by 15 Defendant against Bryce that alleged theft of personal property. Trooper Wilson described part 16 one’s “tone and tenor” as “very calm” and “pretty matter of fact.” The interview consisted of the Troopers asking Defendant about Bryce’s possible motives for the alleged theft and other 17 general information surrounding Defendant’s complaint. After questioning the Defendant for 18 approximately 20 minutes, the Troopers decided to take a quick break. Part two, approximately 2:30 P.M. to 2:45 P.M., began when Trooper Wilson told Defendant that “everything still applies, referring to his rights and everything” and proceeded to 19 question Defendant relating to his complaint. After a few minutes into part two, Trooper Wilson began to ask Defendant about allegations that he solicited Bryce to commit murder and 20 Defendant’s involvement in an attempted murder in Adams County. However, before the interview segued from Defendant’s complaint to Defendant’s solicitation, Trooper Denish interrupted and “goes through [Defendant’s] rights and explains to him he doesn’t have to 21 speak….” After Trooper Denish finished his explanation of Defendant’s rights and choice to voluntarily cooperate, Defendant “adamantly denied” Bryce’s allegations of solicitation and 22 insisted conversations of that nature never took place between the two cellmates. 13 N.T. 13, 21. Trooper Wilson estimated each break to be around two minutes in length. 14 Comm. Ex. 4. The three separate recordings will hereinafter be referred to as “part one,” “part two” and “part three.” 15 N.T. 14. 16 N.T. 15. 17 N.T. 16. 18 N.T. 14. 19 N.T. 17, 29. 20 N.T. 19-20. 21 N.T. 17, 30; Comm. Ex. 3, line 780. 22 N.T. 19. 4 Part three, approximately 2:45 P.M. to 3:25 P.M., began when Trooper Wilson reminded Defendant of his rights and that “[e]verything still applies that we talked about earlier[;] [w]e’re 23 not forcing you to be here.” During the final part of the interview, Trooper Wilson challenged Defendant’s denial of solicitation and involvement in an attempted murder based upon audio 24 recordings between Bryce and Defendant. For a short time, Defendant continued to deny any solicitation for murder or attempted murder, but then “started to offer an explanation for his statements” saying that his conversations with Bryce were merely “stupid ass jail house talk” that 25 meant nothing. When asked about the “tone and tenor” of the third part of the interview, Trooper Wilson responded: “Again, the tone remains pretty much the same the whole time. It’s 26 normal conversation. Nobody ever yells or screams or, you know, anything like that.” After approximately 30-35 minutes into part three, Trooper Wilson decided to end the interview 27 because questioning Defendant was not leading to any significant progress. An Omnibus Pretrial Motion to Suppress the Statements of Defendant made on October 28, 2010, Sever Charges and Request Change of Venue, and Suppress Auditory Wiretap Surveillance Tapes and Written Transcription of Auditory Surveillance Tapes arising from the transactions described above. This Court is now asked to determine if Defendant’s constitutional rights were violated and should the Omnibus Pretrial Motion be granted. 23 N.T. 21. 24 N.T. 22. 25 N.T. 22-23, 35. 26 N.T. 23. 27 Comm. Ex. 3, line 2855. 5 MOTION TO SUPPRESS STATEMENT OF DEFENDANT Discussion 28 When a person is subjected to a custodial interrogation “prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Miranda v. Arizona, 384 U.S. 436, 444 (1966). A Miranda waiver allows for incriminating statements obtained during a custodial interrogation to be “admissible where the accused’s rights to remain silent and right to counsel have been explained and the accused has knowingly and voluntarily waived those rights.” Commonwealth v. Davis, 861 A.2d 310, 317 (Pa. Super. 2004). “For a Miranda waiver to be valid, it must be made knowingly, voluntarily and intelligently.” Commonwealth v. Paxton, 821 A.2d 594, 598 (Pa. Super. 2003). The Pennsylvania Supreme Court in Commonwealth v. Pruitt elaborated on what is required during a trial court’s analysis of a valid waiver of Miranda rights: In considering whether a defendant has validly waived his Miranda rights, the trial court engages in a two-pronged analysis: (1) whether the waiver was voluntary, in the sense that [the] defendant's choice was not the end result of governmental pressure[;] and (2) whether the waiver was knowing and intelligent, in the sense that it was made with full comprehension of both the nature of the right being abandoned and the consequence of that choice. 951 A.2d 307, 318 (Pa. 2008) (quoting Miranda, 384 U.S. at 451). 28 Current Pennsylvania case law has held that questioning an incarcerated person is deemed “custodial” for the purpose of Miranda, however, an extremely recent U.S. Supreme Court decision states that “imprisonment alone is not enough to create a custodial situation within the meaning of Miranda.” Howes v. Fields, ---S.Ct.----, 2012 WL 538280, at *2 (stating, “Questioning a person who is already in prison does not generally involve the shock that very often accompanies arrest; a prisoner is unlikely to be lured into speaking by a longing for prompt release; and a prisoner knows that his questioners probably lack authority to affect the duration of his sentence."); but see Comm. v. Chacko, 571 A.2d 311, 315 (Pa. 1983) (stating, “Thus we conclude that, since appellant was incarcerated at the time of questioning, he was ‘in custody’ for purpose of Miranda.”). Although the recent Howes opinion may resolve a majority of Defendant’s Omnibus Pre-Trial Motion, for the sake of completeness this Court will proceed assuming, arguendo, Defendant was “in custody” for the purpose of Miranda during questioning. 6 “The Commonwealth bears the burden of establishing whether the defendant knowingly and voluntarily waived his or her Miranda rights.” Id. The Pennsylvania Supreme Court in Commonwealth v. Nester described voluntariness as follows: When assessing voluntariness pursuant to the totality of the circumstances, a court should look at the following factors: the duration and means of the interrogation; the physical and psychological state of the accused; the conditions attendant to the detention; the attitude of the interrogator; and any and all other factors that could drain a person's ability to withstand suggestion and coercion. 709 A.2d 879, 882 (Pa. 1998). Additionally, when subjected to an interrogation, a suspect must “understand[] the situation” before “knowingly and intelligently” relinquishing their constitutional rights and making any inculpatory statements. See Commonwealth v. Dixon, 379 A.2d 553, 556-57 (Pa. 1977) (“Commonwealth failed to establish Linda Dixon’s awareness at the time of her written ‘waiver’ that the death of her son was to be the subject matter of the interrogation.”). Furthermore, a renewal of Miranda warnings may become necessary where the “initial warnings have become stale or remote” because a “clear continuity of interrogation” was absent. See Commonwealth v. Scott, 752 A.2d 871, 875-76 (Pa. 2000). The determination of whether initial Miranda warnings have become stale or remote is made in view of the “totality of the circumstances in each case.” Id. The Pennsylvania Supreme Court has outlined what has become known as Bennett factors to help guide the courts in making such a determination: The length of time between the warnings and the challenged interrogation, whether the interrogation was conducted at the same place where the warnings were given, whether the officer who gave the warnings also conducted the questioning, and whether the statements obtained are materially different from other statements that may have been made at the time of the warnings. Id. at 875 (quoting Commonwealth v. Bennett, 282 A.2d 276, 279 (Pa. 1971)). 7 I. The Troopers adequately provided Miranda warnings to Defendant through the use of the Pennsylvania State Police “Rights and Warning Waiver.” The Troopers provided Defendant with his constitutional rights by reading the Pennsylvania State Police “Rights and Warning Waiver” form and having Defendant acknowledge his understanding of those rights with his signature. The waiver form’s language is reproduced below: You have an absolute right to remain silent and anything you say can and will be used against you in a court of law. You also have the right to talk to an attorney before and have an attorney present with you during questioning. If you cannot afford to hire an attorney, one will be appointed to represent you without charge before questioning, if you so desire. If you do decide to answer questions, you 29 may stop any time you wish and you cannot be forced to continue. In accordance with Miranda, supra, the waiver form clearly indicates to Defendant his right to remain silent because anything he says can be used as evidence against him and his right to attorney. The waiver form is clearly marked with the location, time and date, as well as the issuing officer, Trooper Wilson, a witness, Trooper Denish, and Defendant, Lance Greenawalt. Therefore, the language of the form sufficiently provided Defendant his Miranda warnings. II.Defendant knowingly, voluntarily and intelligently waived his Miranda rights. Defendant knowingly, voluntarily and intelligently waived his Miranda rights when making the somewhat inculpatory statements about his involvement with an attempted murder and solicitation-for-murder. A.Defendant’s waiver of Miranda rights was voluntary. Defendant’s Miranda waiver and subsequent self-incriminating statements were not the result of governmental pressure or coercion after assessing voluntariness based upon the totality of the circumstances. Defendant’s interview was not “unduly long” as it only lasted one hour and 29 Comm. Ex. 2 8 thirty-five minutes in length including two short breaks. See, e.g., Nester, 709 A.2d at 883 (stating, “Nester’s interview lasted only one hour and fifteen minutes, which is not unduly long.”) (citing Commonwealth v. Taylor, 431 A.2d 915 (Pa. 1981) (actual period of interrogation lasting slightly more than one hour did not overwhelm defendant’s will)). Also, see Commonwealth v. Rochon, cited parenthetically in Nester stating, “one hour and fifteen minute wait while handcuffed to a bar before interview was insufficient to overbear defendant’s will.” Id. (citing 581 A.2d 239 (Pa. Super. 1990)). Additionally, Defendant seemed calm and clear when answering the Troopers’ questions with no audible indications of physical or psychological 30 impairment and no evidence of possible deficiencies presented on the record. During the interview Defendant’s handcuffs were removed even though Defendant was presently incarcerated at SCI Camp Hill. The Troopers used a professional and casual tone 31 without raised voices when questioning Defendant. Although Defendant alleges coercion in the Troopers’ use of the term “liar” when confronting Defendant about previously made statements, Defendant presented no evidence as to the effect the term “liar” may have had on his state-of- mind and no interrogation tactics used by the Troopers reached a level that would drain Defendant’s ability to withstand suggestion. Therefore, this Court finds Defendant’s statements to be voluntarily given after assessing the voluntariness based upon a totality of the circumstances. B. Defendant’s waiver of Miranda rights was knowing and intelligent. Defendant’s Miranda waiver and subsequent self-incriminating statements were knowing and intelligent because an effective Miranda warning was given prior to the start of the interview and Defendant acknowledged his rights, waived those rights, and proceeded to make somewhat 30 See Comm. Ex. 4; N.T. 31 See Comm. Ex. 4. 9 incriminating statements. Defendant was read his Miranda rights. He also read the rights himself, and signed the waiver form indicating he understood that he was waiving his rights. Defendant was aware of the consequences of abandoning his rights because the waiver form plainly stated, “anything you say can and will be used against you in a court of law.” Additionally, even though a proper Miranda warning was already provided earlier, throughout the interview Defendant was reminded of his rights and indicated he was aware of his rights. Troopers went above and beyond what was expected to ensure that Defendant was aware of his constitutional rights. One example of Trooper Denish reminding Defendant of his rights is 32 provided: Trooper Denish: Uh – uh, before you start, you understand that you’re not under arrest – well, you’re in jail, but … Lance Greenawalt: Right. Trooper Denish: I’d like you to hear what we have to say … Lance Greenawalt: Okay. Trooper Denish: … but you can leave if you want. Lance Greenawalt: Okay. Trooper Denish: Is that fair? Lance Greenawalt: Sure. Trooper Denish: And you can stop talking, answer the questions any time of want. Lance Greenawalt: Okay. Trooper Denish: That’s fair? Lance Greenawalt: Sure. 32 Comm. Ex. 3, lines 780-813. 10 Trooper Denish: Okay. Um, I just want to get that clear. Don’t want you to think you’re – you’re – the door is open. I’m sure you can’t walk out, but just say, hey, I don’t want to talk no more. I want to leave. Lance Greenawalt: Okay. Sure. Therefore, this Court finds that the initial Miranda warnings and subsequent reminders followed by Defendant’s decision to waive his Miranda rights was knowing and intelligent. C. Defendant was aware of the subject matter of the interview at the time of his Miranda waiver. Defendant’s interview encompassed all interactions between Defendant and former cellmate Bryce and was within the same subject matter nexus that led to Defendant’s inculpatory statements. Defendant incorrectly characterizes the questioning between the Troopers and himself as falling into the same scenario as Dixon, supra, where the Pennsylvania Supreme Court held that Linda Dixon did not “knowingly and intelligently” relinquish her constitutional rights because she lacked an “awareness of the nature of the investigation” when signing her waiver. Dixon, 379 A.2d at 556-57. Briefly summarized, Linda Dixon had signed a Miranda waiver relating to a malicious mischief charge, however, investigators surprised her by questioning her on a “wholly different matter” relating to the death of her child. Id. at 555-57. After being shown a photograph of her deceased child, Linda Dixon cried for ten minutes and confessed to the murder. Id. The Court reasoned, in part, that Linda Dixon did not make a knowing and intelligent waiver of her constitutional rights because an “ambiguity as to [her] understanding of the situation, an ambiguity which went unclarified by appellant’s interrogators…” existed at the time of her waiver. Id. at 556-57. However, the current case can easily be distinguished from Dixon as in the Superior Court’s case Commonwealth v. Fox. See 697 A.2d 995, 998-99 (Pa. Super. 1997). 11 Unlike in Dixon and similar to Fox, in the case sub judice, the Commonwealth has met the burden of proving by a preponderance of the evidence that Defendant knew of “the occasion for the interrogation” at the time of the Miranda waiver. Id. at 556; see Commonwealth v. Richman, 320 A.2d 351 (Pa. 1974). In Fox, the Superior Court did not suppress inculpatory statements where Fox was told that police were conducting an investigation concerning him and his daughter but was never told that the purpose of the interrogation was in regard to allegations that he sexually molested her over a period of seven years and that those allegations were the purpose of the interrogation. Id. at 999. The Superior Court reasoned that “appellee knew the ‘occasion for the interrogation’ at the time he waived his rights.” Id. Similar to Fox, in the present case Defendant had an “awareness of a general nature of the transaction giving rise to the investigation[]” because Defendant was aware that the investigation by the Troopers could involve all conversations that occurred between Defendant and Bryce while cellmates at SCI Camp Hill. Richman, 320 A.2d at 998. Defendant knew, or should have known, that his allegations of Bryce’s thefts would include all the interactions, including conversations, he previously had with Bryce as a cellmate. A thorough investigation of Defendant’s allegation against Bryce would require the Troopers to speak with and question all parties involved. The Troopers would have to inquire into conflicting allegations by confronting each accuser with contradictory information regarding all of their interactions while cellmates. Even if Defendant was not aware of the true intentions of the Troopers at the time of the interrogation, he was aware that they would be asking him about his time as a cellmate of Bryce. Therefore, the Troopers line of questioning that eventually segued into conversations about the solicitation of murder between Defendant and Bryce would be a natural progression and logically follow any inquiry about the two parties involved. 12 III.Renewal of Defendant’s Miranda warning was not necessary because of a clear continuity of interrogation. 33 Taking into account the Bennett factors and comparing the present case to Scott, this Court finds a clear continuity of interrogation and a renewal of Defendant’s Miranda warnings to be unnecessary. See Scott, 752 A.2d at 875-76. In Scott, Appellant was read his rights only two and one-half hours before he gave his first incriminating statement, only momentary breaks in questioning occurred, and Appellant confessed in the same room where he was read his rights. Id. at 876. The only negative factor being that the Appellant confessed to a different officer than the officer who had initially read him his rights. Id. The Superior Court did not consider this one negative factor to be of sufficient weight to warrant a need to rewarn Appellant of his rights. Id. In the case sub judice, the Bennett factors weigh heavily in favor of a “clear continuity of interrogation” because Defendant’s entire interrogation only lasted a total of an hour and a half, had only two brief breaks, was conducted within the same room that his rights were given and in front of the same troopers that read him those rights. Therefore, Defendant’s Miranda warnings were fresh and no renewal of rights was required. Conclusion In a final analysis it is interesting that the Defendant seeks to suppress the statements he made to the State Police on October 28, 2010. Given this Court’s decision which follows in this opinion regarding the legality of the wiretap conducted by the Commonwealth from September 21, 2010 to September 23, 2010, the statements made by the Defendant as recorded during the wiretap will be admissible at trial. In reality, the Defendant made no real admissions to the State Police when they interviewed him on October 28, 2010. Accordingly, it would appear that the Defendant will continue to advocate the defense he provided to the Troopers during the 33 Supra Discussion section. 13 interview, i.e. “… it’s bullshit. You know? It’s talk. It’s jail talk. You know, it’s inflated arrogance, ego whatever you wanna call it.” Commonwealth’s Exhibit 3, 8/3/11, line 1861, 1862. In essence, the Defendant has asserted that he is not guilty of solicitations to commit murder, because he never had the intent of promoting or facilitating such crimes. Equally important is the fact that the real purpose of this interview was not to gain more incriminating evidence against the Defendant. From the State Police perspective, the wiretap conversations of the Defendant provided them with sufficient evidence to charge the Defendant with the attack on Daniel Keys. At no time during the interview does the Defendant ever admit that he attacked Daniel Keys. One does not have to be Sherlock Holmes to deduce the fact that the real purpose of this interview was to get the Defendant to state that he was hired by John Lloyd to kill Daniel Keys. When it became apparent that the Defendant was not about to do this, the interview ended. In any regard, the Defendant’s Motion to Suppress is denied. MOTION TO SEVER CHARGES AND REQUEST CHANGE OF VENUE I. Motion To Sever The Pennsylvania Rules of Criminal Procedure 583 on “Severance of Offenses or Defendants” states: The court may order separate trials of offenses or defendants, or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being tried together. Pa. R. Crim. P. 583. “Under Rule 583, the prejudice the defendant suffers due to the joinder must be greater than the general prejudice any defendant suffers under when the Commonwealth’s evidence links him to a crime.” Commonwealth v. Dozzo, 991 A.2d 898, 902 (Pa. Super. 2010). Rule 583 attempts to prevent a trial from including evidence that would lean toward convicting a defendant merely by showing a propensity to commit crimes, however, “the admission of relevant evidence connecting a defendant to the crimes charged is a natural consequence of a 14 criminal trial, and is not grounds for severance by itself.” Id. The Pennsylvania Supreme Court has established the following test to govern severance issues: 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 therefore 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 of confusion; and, if the answers to these inquiries are in the affirmative, whether the defendant will be unduly prejudiced by the consolidation of offenses. Commonwealth v. Lark, 543 A.2d 491, 496-97 (Pa. 1988). Taking the first part of the test, a trial court must determine the admissibility of “each of the offenses” in a separate trial. Id.; see Dozzo, 991 A.2d at 902. The admissibility of evidence of other crimes is permissible to show: (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others …. Additionally, evidence of other crimes may be admitted where such evidence is part of the history of the case and forms part of the natural development of the facts. Dozzo, 991 A.2d at 902 (quoting Collins, 703 A.2d 418, 422-23 (Pa. 1997)); Pa. R.E. 404(b)(2). With regard to the second part of the test, the ability of a jury to separate the evidence of distinct criminal offenses, it can be said that this becomes an easier task when the criminal offenses took place at different times and at different locations. See id. at 902-903. In the case sub judice, in an exercise of caution, this Court holds that severance of the charges against Defendant is warranted. There is no question that in the trial of Defendant for solicitation to commit criminal homicide, evidence of the crimes of attempted homicide, aggravated assault and burglary related to Daniel Keys will be admissible in that trial to establish motive and intent. Keys is one of the main targets Defendant solicited Timothy Bryce to murder. John Lloyd is the brother of Daniel Keys and is the individual Keys was with just prior to being assaulted on April 30, 2006. Lloyd is also one of the victims in the burglary case that resulted in 15 Defendant being sentenced to the State Correctional Institute. It was this case that Judge Michael George presided over. Clearly, all of these events are interrelated and establish Defendant’s motive and intent with regard to the solicitation to commit homicide. However, when one considers the attempted homicide and aggravated assault on Daniel Keys and the burglary of Keys’ home, all of which took place on April 30, 2006, in Adams County, evidence of the solicitation to murder Judge George which took place in Cumberland County, would not be admissible in the trial of these crimes. Solicitation to murder Judge George took place 4 years after the actual attack on Keys. To inject into the attempted homicide trial evidence that Defendant solicited Bryce to murder a Common Pleas Judge would unduly prejudice the Defendant by showing that he has a propensity for serious violence. For a jury to hear the wiretap evidence regarding Defendant’s statements on how he violently and viciously assaulted Daniel Keys and then to also hear that on an unrelated matter he wanted to have a Judge murdered is in this Court’s eyes very damning and clearly prejudicial. II. Request to Change Venue Subject matter jurisdiction and proper venue “must exist simultaneously in order for a court to properly exercise its power to resolve a particular controversy.” Commonwealth v. “ Bethea, 828 A.2d 1066, 1075 (Pa. 2000). Subject matter jurisdiction relates to the competency of a court to hear and decide the type of controversy presented.” Id. at 1074. “Venue relates to the right of a party to have the controversy brought and heard in a particular judicial district.” Id.; Commonwealth v. Brookins, 10 A.3d 1251, 1258-59 (Pa. Super. 2010). All Pennsylvania courts of common pleas possess subject matter jurisdiction in controversies arising out of the Pennsylvania Crimes Code. See Bethea, 828 A.2d at 1074-75 (citing 18 Pa.C.S. § 102). “Generally, venue begins in the court with a geographic connection to events at issue.” Id. at 16 1075. The party seeking to change venue “bears the burden of showing that such a change is necessary and must demonstrate that he or she cannot receive a fair and impartial trial in the county in which venue was originally established.” Brookins, 10 A.3d at 1259. Important factors to consider in evaluating the likelihood of prejudice within a certain venue are: 1) Will the defendant incur an undue expense? 2) Will the defendant be able to obtain defense witnesses or evidence? 3) Did the prosecution engage in forum shopping to obtain an advantage over the defense? 4) Did pre-trial publicity make a fair trial unlikely? See id. In the case sub judice, subject matter jurisdiction and proper venue are present. Subject matter jurisdiction is established through the numerous charges against Defendant arising out of the Pennsylvania Crimes Code. As the moving party, Defendant had the burden to demonstrate that Cumberland County, as the originally established venue, would prejudice his trial. Venue is proper because Defendant has failed to establish that he cannot receive a fair and impartial trial in Cumberland County and that a change of venue to Adams County is necessary. Nothing on the record suggests 1) that Defendant would incur any undue expense, 2) that he would not be able to obtain witnesses or evidence, 3) that the prosecution engaged in forum shopping, and finally 4) that pre-trial publicity would make having a fair trial unlikely. Therefore, Defendant’s request for a change of venue is denied. st On a practical note, this Court is aware of the fact that Adams County, the 51 Judicial District, has four judges of which Judge Michael George remains an active member of that bench. Accordingly, given the fact that the Defendant is charged with soliciting the murder of one of their colleagues, the most practical solution is not to have Lance Greenawalt tried in Adams County. Additionally, after reviewing the contents of the wiretap, Defendant makes numerous references to the fact that he has personal connections with the current District 17 Attorney of Adams County. Given these statements, it is highly likely that the District Attorney of Adams County would recuse himself from this prosecution requiring the Pennsylvania Attorney General or a special prosecutor to step in to conduct the trial of this case. Additionally, Carlisle, being less than 28 miles from Gettysburg, is a convenient forum for all the witnesses including the Defendant who remains housed at SCI-Camp Hill, in Cumberland County. This case was investigated by the Pennsylvania State Police who have statewide jurisdiction. While the alleged offense occurred in Adams County and was investigated by the State Police there, no evidence was developed for over 4 years in Adams County which linked the Defendant to the alleged crime. The evidence against the Defendant was obtained by the State Police by use of a wiretap which was conducted in Cumberland County. For all of these reasons, Cumberland County is the fairest and most practical venue for trial of this case. MOTION TO SUPPRESS AUDITORY WIRETAP SURVEILLANCE TAPES AND WRITTEN TRANSCRIPTION OF AUDITORY SURVEILLANCE TAPES Discussion The requirements for a valid search warrant and wiretap authorization were satisfied by the Commonwealth. The Commonwealth’s application adequately provides the particularity and veracity needed to describe the persons and place to be searched. See 18 Pa. C.S.A. § 5709(3)(iv); Pa. R. Crim. P. 205(3). The Commonwealth’s application list Defendant and inmate Bryce by name as well as their SCI Camp Hill identification numbers. Additionally, the cell of Defendant and Bryce is identified. Furthermore, the trooper submitted an affidavit of probable cause that specifically corroborated the details outlined by Bryce. 18 One cannot lose sight of the fact that in Pennsylvania wiretapping is considered a very restricted investigative tool. It is tightly controlled by the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. § 5701 et. seq. Only a Judge of the Superior Court of Pennsylvania may authorize a wiretap of the type utilized in this case. Here, the learned Correale Stevens, Judge of the Superior Court, specifically approved a six page Order allowing the District Attorney of Cumberland County and Pennsylvania State Police to install and conduct this wiretap. All provisions of the Wiretapping and Electronic Surveillance Control Act were complied with. Therefore, Defendant’s Motion to Suppress the auditory wiretap surveillance tapes and written transcription of auditory surveillance tapes for lack of specificity, veracity, and probable cause are without merit. Conclusion This Court finds (1) that Defendant knowingly, intelligently, and voluntarily waived his valid Miranda warnings, (2) that severance of charges is warranted, (3) that change of venue is unwarranted, and (4) that the search warrant and wiretap were valid. For all of the above mentioned reasons, Defendant’s Omnibus Pretrial Motion should be granted in part and denied in part. Accordingly, the following Order will be entered: nd AND NOW , this 22 day of March, 2012, upon consideration of the Defendant’s Omnibus Pre-Trial Motion, the briefs filed by the parties in support thereof and after hearing, IT IS HEREBY ORDERED AND DIRECTED that: 1. The Defendant’s Omnibus Pre-Trial Motion to Suppress Statement of Defendant is DENIED . 19 2. The Defendant’s Omnibus Pre-Trial Motion to Sever Charges and Request Change of GRANTEDDENIED Venue is in part and in part. Defendant’s Motion to Sever Charges is GRANTED.DENIED The Defendant’s Request for Change of Venue is . 3. The Defendant’s Omnibus Pre-Trial Motion to Suppress Auditory Wiretap DENIED Surveillance Tapes and Written Transcription of Auditory Surveillance Tapes is . By the Court, M. L. Ebert, Jr., J. Matthew P. Smith Chief Deputy District Attorney Michael Rentschler, Esquire Attorney for Defendant 20