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HomeMy WebLinkAbout92-0516 CriminalCOMMONWEALTH V. ASALER LAVELLE POINTER OTN: E004539-3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 516 CRIMINAL 1992 CHARGE: (A) ROBBERY (2 cts.) (B) THEFT BY UNLAWFUL TAKING (2 cts.) (C) RECEIVING STOLEN PROPERTY ( 2 cts.) (D) CONSPIRACY (4 cts.) AFFIANT: TPR. GERALD HENNEMAN IN RE: DEFENDANT'S POST -TRIAL MOTIONS BEFORE OLER, J. ORDER OF COURT AND NOW, this i0 day of November, 1993, upon consideration of Defendant's Post -Trial Motions, as well as the briefs presented in the matter, Defendant is awarded a new trial. Additional relief requested by Defendant is denied. BY THE COURT, J Wesley Oler, . J. William I. Gabig, Esq. Sr. Assistant District Attorney Arla M. Waller, Esq. Assistant Public Defender :rc COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 516 CRIMINAL 1992 V. CHARGE: (A) ROBBERY (2 cts.) (B) THEFT BY UNLAWFUL TAKING ( 2 cts.) (C) RECEIVING STOLEN PROPERTY ( 2 cts.) (D) CONSPIRACY (4 cts.) ASALER LAVELLE POINTER AFFIANT: TPR. GERALD HENNEMAN OTN: E004539-3 IN RE: DEFENDANT'S POST -TRIAL MOTIONS BEFORE OLER, J. OPINION AND ORDER OF COURT Oler, J. At issue in the present case are post -trial motions filed by Asaler Lavelle Pointer (Defendant) following a jury trial in which Defendant was found guilty' of two counts of robbery,2 two counts of theft by unlawful taking,' two counts of receiving stolen property4 and two counts of conspiracy to commit robbery.' More specifically, Defendant has filed a motion in arrest of judgment, contending that the trial court erred in denying Defendant's motion for a mistrial, which was based upon the Commonwealth's calling of Defendant's alleged accomplice, knowing that the witness would invoke his Fifth Amendment privilege against self-incrimination. Alternatively, 1 Commonwealth v. Pointer, 516 Criminal 1992, June 29-30, 1993, at 150-54 (hereinafter N.T. ). 2 Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §3701(a). ' Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §3921. 4 Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §3925. s Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §903. 516 Criminal 1992 Defendant requests a new trial, contending that the "trial court erred in denying Defendant's motion to have an individual juror questioned outside the presence of the other jurors," after the juror had caused a certain note to be sent to the judge.' For the reasons set forth in the Opinion, the Court finds merit in Defendant's contention that a mistrial should have been declared following the Commonwealth's calling of an alleged accomplice of Defendant with knowledge that he would invoke his privilege against self-incrimination. However, since the Court is of the opinion that the prosecution's conduct was not so egregious as to preclude reprosecution of the Defendant, a new trial only will be awarded.' The facts of this case, as adduced at trial, may be summarized in the following manner: On October 5, 1991, at approximately 1:30 a.m., a man entered the Texaco Store located on Walnut Bottom Road near Carlisle in Cumberland County,' approached the clerk of the store with a gun and ordered him to get down on the floor.' Subsequently, the man ordered the clerk to open the cash register and 6 Defendant's Post -Trial Motions, paragraph 4. The contents of this note, penned by a tipstaff to whom the juror had spoken, were as follows: "Judge, is it possible that the foreman give only their juror number and not their name, request from a former foreman - P." N.T. 126. The Court brought this communication to the attention of counsel. ' Since Defendant is being granted a new trial on this ground, the Court will not address the issue of whether such relief should also be granted because the anonymous juror was not identified and questioned after receipt of the note by the trial judge. 8 N.T. 9-10. 9 N.T. 11. 2 516 Criminal 1992 removed the cash from it.10 The man then proceeded to an office in the store and removed the bills which were contained in a cash drawer located there." At this time, two other individuals entered the store and removed forty or fifty cartons of cigarettes from behind the counter. 12 The three men left the store with approximately $269.00 in cash and $800.00 worth of cigarettes." Also on this date, at approximately 2:13 a.m., a robbery occurred at Mr. B's, a convenience store located in Shippensburg, Cumberland County.14 At this time, a man entered the store, held a gun to the clerk's chest, and demanded all the money in the cash register.15 Additionally, two other men entered the store, and removed various items from the shelves. After the clerk gave the money to the man who had the gun, she was told to lie on her stomach on the floor.18 As the perpetrators were leaving the store, the man who had confronted the clerk fired a shot into the cigarette rack above the cash register. Shortly after 3:00 a.m. on the aforementioned date, the Maryland State Police 10 N.T. 11. 11 N.T. 11-12. 12 N.T. 21. 13 N.T. 21-22. 14 N.T. 114. L5 N.T. 114. 16 N.T. 114. K 516 Criminal 1992 stopped a vehicle matching a description of the one involved in the robberies.]' At this time, there were four individuals occupying the vehicle, including Gregory Miller, Victor Rego, and Defendant.18 Additionally, several hundred dollars in cash, several cartons of cigarettes, and oil and gas products were seized from the vehicle.19 A handgun was also found on "the right roadside, parallel to the right passenger's side of the truck, on the grass.n20 Defendant was charged with two counts of robbery, two counts of theft by unlawful taking, two counts of receiving stolen property and four counts of conspiracy.21 A jury trial on the matter was held before the undersigned judge on June 29 and 30, 1993. At the commencement of the trial, the Commonwealth indicated in its opening statement that it would be calling Gregory Miller and Victor Rego, alleged coactors with Defendant.22 During the course of the trial, the Commonwealth did call Gregory Miller, and he testified as to his involvement in an 17 N.T. 59. 18 N.T. 61. 19 N.T. 61-62. 20 N.T. 62. 21 At the time of trial, two counts of conspiracy were dropped. N.T. 120-21. 22 Commonwealth u. Pointer, 516 Criminal 1992, June 29-30, 1993, In re: Opening Statements, at 4. 4 516 Criminal 1992 armed robbery with Defendant on October 5, 1991.23 Additionally, the Commonwealth also called Victor Rego, who had agreed to testify against Defendant as part of a plea bargain.24 At the commencement of the direct examination of Victor Rego, the witness stated the following: Your Honor, I spoke to the District Attorney this morning about what I wasn't going to do up here. He's forcing me to say this. I'm saying I'm not going to push it any further.' At this point, the jury was excused 2' and the Commonwealth's attorney indicated that he had been aware of Victor Rego's reluctance to testify.27 In response, Defendant's attorney requested a mistrial, contending that this incident was prejudicial to Defendant ;21 the motion was denied .2' However, the Court did instruct the jury, with the approval of counsel,30 that it was "not to draw any conclusion from the 23 N.T. 43. 24 N.T. 107-09. 26 N.T. 108. 26 N.T. 109. 27 N.T. 112. 28 N.T. 111. 29 N.T. 113. 30 N.T. 119. W 516 Criminal 1992 refusal of [Victor Rego] to testify."31 It is this incident upon which Defendant bases the motion in arrest of judgment in this case. The law in Pennsylvania is well settled that "the prosecution, once informed that a witness intends to claim a privilege against self-incrimination, commits error in calling that witness to the stand before the jury where the witness is a person ... likely to be thought by the jury to be associated with the defendant in the incident or transaction out of which the criminal charges arose." Commonwealth v. Duval, 453 Pa. 205, 217, 307 A.2d 229, 234 (1973).32 In DuVal, the Pennsylvania Supreme Court held that such conduct by the prosecution constitutes prejudicial error because it creates the risk "that the jury will make improper inference from the mere refusal of the witness called to testify at all, 'M and this inference "has no probative value whatsoever in establishing the guilt of the defendant." Id.34 In its brief, the Commonwealth contends that "the jury had already heard evidence that linked the defendant with the incident out of which the criminal charges arose.i35 Consequently, it is argued that "[a]ny `guilt by association' the jury may 31 N.T. 119-20. 32 See also Commonwealth v. Davenport, 453 Pa. 235, 308 A.2d 85 (1973). 33 Commonwealth v. Duval, 453 Pa. 205, 213, 307 A.2d 229, 232-33 (1973). ' The Court further noted that such a tactic may be "an effort to cause the jury to think `guilt by association."' Commonwealth v. DuVal, 453 Pa. 205, 214, 307 A.2d 229, 233 (1973). ' Commonwealth's Brief, at 7. L 516 Criminal 1992 have inferred [from Mr. Rego's refusal to testify] was already inferred from the previous, sworn testimony of Mr. Miller," 38 and, therefore, that Defendant experienced no prejudice from Victor Rego's refusal to testify. However, the Supreme Court has stated that when there is "[o]ther prosecution testimony [which] indicated that the [defendant] and co -indictees were acting in concert on the night of [the crime,] [t]he possibility that the jury may have reasonably inferred an admission of guilt through a transfer process to the [defendant] is highly prejudicial." Commonwealth v. Terenda, 451 Pa. 116, 122, 301 A.2d 625, 629 (1973). Consequently, the Court cannot accept the Commonwealth's position. Although the Court is of the opinion that a mistrial should have been granted as a result of the Commonwealth's calling Victor Rego under the aforesaid circumstances, it does not believe that such conduct warrants an arrest of judgment." Had the Commonwealth displayed "an extraordinary course of prosecutorial overreaching, including direct misrepresentation to the court, taken in deliberate bad faith,"" the preclusion of a retrial might be appropriate. The record in this case, however, does not reveal any such misconduct on the part of the Commonwealth. During its opening statement to the jury, the Commonwealth indicated that Victor 36 Commonwealth's Brief, at 8. 37 See, e.g., Commonwealth v. DuVal, 453 Pa. 205,307 A.2d 229 (1973) (new trial granted); Commonwealth v. Terenda, 451 Pa. 116, 301 A.2d 625 (1973) (new trial granted). ' Commonwealth v. Virtu, 495 Pa. 59, 68, 432 A.2d 198, 203 (1981). 7 516 Criminal 1992 Rego would be testifying during the trial.99 As that time, the speaker was unaware of the fact that Victor Rego would not testify when called to do so.40 Mr. Rego had, in fact, represented the previous day in open court that he would so testify.41 Under these circumstances, the Commonwealth chose to present the witness promised and test his resolve before the jury.42 Although the Court believes that a mistrial must result from this decision, it does not feel that the Commonwealth's conduct was so egregious as to warrant relief beyond a new trial. ORDER OF COURT AND NOW, this /Ob�day of November, 1993, upon consideration of Defendant's Post -Trial Motions, as well as the briefs presented in the matter, Defendant is awarded a new trial. Additional relief requested by Defendant is denied. BY THE COURT, J. Wesley Oler, J� ' Commonwealth v. Pointer, 516 Criminal 1992, June 29-30, 1993, In re: Opening Statements, at 4. See also N.T. 112-113, 118. 40 N.T. 118. 41 N.T. 112. 42 N.T. 112. 516 Criminal 1992 William I. Gabig, Esq. Sr. Assistant District Attorney Arla M. Waller, Esq. Assistant Public Defender :rc