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HomeMy WebLinkAbout01-1994 CRIMINALCOMMONWEALTH JACOB A. QUATRARA OTN: E936197-3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARGES: (3) (4) (5) AGGRAVATED ASSAULT RECK ENDANG ANOTHER PERSON SIMPLE ASSAULT NO. 01-1994 CRIMINAL TERM IN RE: DEFENDANT'S POST-SENTENCE MOTION BEFORE OLER~ J. OPINION and ORDER OF COURT OLER, J., July 30, 2002. In this criminal case, Defendant Jacob A. Quatrara was convicted of several offenses relating to an incident in which he shot and wounded Jeffrey L. Walters.~ The shooting occurred shortly before midnight on September 6, 2001, soon after Mr. Walters arrived at Defendant's home, allegedly after he had been invited there by one Lanita A. Eichelberger. Ms. Eichelberger, at all times relevant to this case, was living with and was romantically involved with Defendant while being married to Mr. Walters.2 At trial, the Commonwealth contended that Defendant had conspired with Ms. Eichelberger to lure and shoot Mr. Walters, at least in part because Ms. Eichelberger had believed that Mr. Walters had been romantically involved with another woman. ~ Order of Ct., Mar. 8, 2002; see N.T. 26-29, Test. of Jeffery Lynn Walters, March 6, 2002 (hereinafter N.T. , Walters Trial Test.); N.T. 13-16, Hr'g, Jan. 11, 2002 (hereinafter N.T. , Pre-Trial Hr'g); see also Police Criminal Compl., Commonwealth v. Quatrara, No. CR-123-01 (Pa. Magis. D. 09-3-02 Sept. 27, 2001) (affidavit of probable cause). 2 See, e.g., N.T. 3-6, 12-13, Walters Trial Test. 3 See, e.g., N.T. 22, 41, Walters Trial Test.; N.T. 24, 72, Pre-Trial Hr'g; see also Police Criminal Compl., Commonwealth v. Quatrara, No. CR-123-01 (Pa. Magis. D. 09-3-02 Sept. 27, 2001) (affidavit of probable cause). Ms. Eichelberger was tried as a co- defendant with Defendant and was charged with the same offenses as Defendant. See Information, filed Nov. 11, 2001, Commonwealth v. Eichelberger, No. 01-1995 Criminal Term (Pa. Ct. Com. Pl. Cumberland Apr. 9, 2002). Defendant was charged with criminal attempt to commit criminal homicide, a felony of the first degree;4 aggravated assault involving an attempt to cause serious bodily injury, a felony of the first degree;5 aggravated assault involving an attempt to cause or intentionally or knowingly causing bodily injury to another with a deadly weapon, a felony of the second degree;6 recklessly endangering another person, a misdemeanor of the second degree;7 simple assault, a misdemeanor of the second degree;8 and criminal conspiracy9 to commit each of the aforementioned offenses,l° Following a jury trial, Defendant was found guilty of all offenses except criminal attempt to commit criminal homicide and the offenses involving criminal conspiracy. ~ Defendant was sentenced to pay the costs of prosecution, to make restitution to the victim, and to undergo a period of imprisonment of not less than five years nor more than ten years in a state correctional institution.~2 The court noted that this sentence was "in 4 Act of Dec. 6, 1972, P.L. 1482, § 1, 18 Pa. C.S. § 2501 (2001) (defining criminal homicide); 18 Pa. C.S. § 901 (defining criminal attempt). 5 18 Pa. C.S. § 2702(a)(1). 6 18 Pa. C.S. § 2702(a)(4). 7 18 Pa. C.S. § 2705. 8 18 Pa. C.S. § 2701(a)(1). 9 18 Pa. C.S. § 903(a). lo See Information, filed Nov. 19, 2001. ~ Order of Ct., Mar. 8, 2002. Ms. Eichelberger was convicted of recklessly endangering another person, a misdemeanor of the second degree, and of simple assault, a misdemeanor of the second degree. Order of Ct., Mar. 8, 2002, Eichelberger, No. 01- 1995 Criminal Term. ~2 Order of Ct., Apr. 16, 2002. With respect to the charge of aggravated assault involving an attempt to cause serious bodily injury, Defendant was sentenced to pay the costs of prosecution, to make restitution, and to undergo a period of imprisonment of not less than five years nor more than ten years. Id With respect to the charge of aggravated assault involving an attempt to cause bodily injury with a deadly weapon, Defendant was sentenced to pay the costs of prosecution and to undergo a period of imprisonment of not less than sixteen months nor more than thirty-two months. Id The two sentences were ordered to run concurrently. Id With respect to the charges of recklessly endangering 2 the aggravated range of the guidelines because it [was] the mandatory minimum sentence required by law" for aggravated assault involving an attempt to cause serious bodily injury when a visible firearm was used.~3 On April 24, 2002, Defendant filed a post-sentence motion raising several issues. ~4 A hearing on the motion was held on May 29, 2002, after which the matter was taken under advisement. ~5 Briefs have now been submitted by the parties. For the reasons stated in this opinion, Defendant's post-sentence motion will be denied. STATEMENT OF FACTS At all times relevant to this case, Defendant Jacob A. Quatrara, 53, lived with Lanita A. Eichelberger, 42, at 20 Subdivision Road, Newville, Upper Mifflin Township, Cumberland County, Pennsylvania. The victim, Jeffery L. Walters, 42, lived at 32 Center Street, Mount Holly Springs, Cumberland County, Pennsylvania, and was married to Ms. Eichelberger. ~ 6 In view of the variety of issues raised by the several assignments of error included in Defendant's post-sentence motion, each assignment, and the facts relevant to its disposition, will be discussed seriatim. First Assignment of Error. Defendant's first assignment of error, titled "Motion for a New Trial," alleged that a juror in Defendant's case, Ronald Tucker, while at home during a recess in the trial, spoke with a corporal of the Pennsylvania State Police, Steven Junkin, who was stationed in Cumberland County and who had been in the courtroom for a short time during trial.~7 According to the motion, the purpose of the contact was "a another person and simple assault, the court determined that the doctrine of merger precluded the imposition of additional sentences. Id. ~3 Order of Ct., Apr. 16, 2002. ~4 Def.'s Post Sentence Mots., filed Apr. 24, 2002. ~5 Order of Ct., May 29, 2002. 16 N.T. 3-6, 12-13, Walters Trial Test. ~7 Id. paras. 5-9; N.T. 3-7, Hr'g, May 29, 2002 (hereinafter N.T. , Post-Sentence Hr'g). 3 scheduled home inspection related to the purchase of the [j]uror's property by the [c]orporal." Although the two "did not discuss the case or the charges pending against [Defendant]," but only the "the demeanor and long winded nature of the attorneys involved in trying the matter," Defendant alleged that a "reasonable likelihood of prejudice resulted" from these contacts and that a new trial should be awarded on this basis,la At the hearing on Defendant's post-sentence motion,~9 Defendant offered the testimony of Corporal Junkin, whom the court found to be entirely credible. With respect to his involvement with Defendant's case, Corporal Junkin testified that he was associated with neither the investigation nor the prosecution of Defendant and that his only connection with the case was his position as supervisor of Trooper George Kelly, who was the affiant in the case.2° Corporal Junkin stated that, although many cases were the subject of "general discussions," he was "least familiar with" Defendant's case and that he "didn't know too many details regarding [it].''2~ When asked about his knowledge of the case at the time of the allegedly prejudicial contact with Mr. Tucker, Corporal Junkin could recount only a basic overview of the facts and issues involved and could not recall many details, such as the names of witnesses at the proceedings.22 With respect to the contacts between Corporal Junkin and Mr. Tucker, Corporal Junkin's testimony may be summarized as follows: Corporal Junkin first encountered Mr. Tucker at the latter's house, which the former was interested in purchasing, several days before Mr. Tucker was scheduled to la Def.'s Post Sentence Mots., filed Apr. 24, 2002, paras. 5-9. 19 At the hearing, the only evidence presented by Defendant related to the allegedly prejudicial contact between Corporal Junkin and Mr. Tucker. N.T. 3, Post-Sentence Hr'g. 20 N.T. 3-4, Post-Sentence Hr'g. 2~ N.T. 5, Post-Sentence Hr'g. 22 N.T. 5-6, Post-Sentence Hr'g. 4 appear for jury duty)3 When Mr. Tucker learned that Corporal Junkin was a law enforcement officer stationed in Cumberland County, Mr. Tucker commented that he had been summoned for jury duty in that jurisdiction. Corporal Junkin acknowledged this information, but did not converse with Mr. Tucker on the topic)4 On that day, Corporal Junkin signed an agreement to purchase Mr. Tucker's home)5 The following week, Corporal Junkin saw Mr. Tucker while the latter was sitting as a juror in Defendant's case. Corporal Junkin was in the area to show another law enforcement officer, who had been recently assigned to Corporal Junkin's barracks, around the Cumberland County Courthouse)6 Corporal Junkin, who was not wearing his uniform at the time, left the courtroom after noticing Mr. Tucker and did not converse with him.27 Soon thereafter, Corporal Junkin, accompanied by a professional home inspector, visited Mr. Tucker's house for an inspection, which had been scheduled prior to the trial's commencement)8 Although Mr. Tucker told Corporal Junkin that he was on a jury and that "the attorneys were acting like assholes," he did not comment further on the case and stated that he was "not allowed to talk about [it].''29 Corporal Junkin did not make any statements regarding the case and "just kind of chuckled it off.''3° 23 N.T. 7, Post-Sentence Hr'g. Corporal Junkin was introduced to Mr. Taylor through a real estate agent. N.T. 7, Post-Sentence Hr'g. 24 N.T. 25 N.T. 26 N.T. 27 N.T. 2a N.T. 29 N.T. 30 N.T. 7-8, Post-Sentence Hr'g. 12, Post-Sentence Hr'g. 8-9, Post-Sentence Hr'g. 9-10, Post-Sentence Hr'g. 10-11, Post-Sentence Hr'g. 11, Post-Sentence Hr'g. 11-12, Post-Sentence Hr'g. 5 Mr. Tucker's testimony3~ substantially corroborated the account of events provided by Corporal Junkin. Mr. Tucker testified that the sole purpose of the contacts between him and Corporal Junkin had been to effectuate the sale of the house, that Corporal Junkin had not commented on the trial during these contacts, that he had "noticed" Corporal Junkin at the trial but had not spoken to Corporal Junkin, and that he could not remember whether he had "mentioned [to other jurors] that a State Trooper bought [his] house." According to Mr. Tucker's testimony, these contacts had "[a]bsolutely zero effect" on his views regarding Defendant's case and had no influence on him during the deliberations.32 Second Assignment of Error. Defendant's second assignment of error, titled "Motion for a New Trial Based upon Failure To Grant Defendant's Motion To Suppress Evidence Seized Pursuant to an Illegal Search," alleged that, during several protective sweeps of Defendant's home conducted by police at the time of the arrest, "[i]nformation about the crime scene was gathered..., [was] used in the affidavit of probable cause to support the search warrant, and was introduced into evidence at trial.''33 Specifically, according to the post-sentence motion, "[t]he evidence collected during the earlier illegal entries into the Defendant's residence included the police discovering the co-defendant hiding in the residence's bathroom and one untruthful statement made by the co- defendant.''34 Defendant contended that the court erred in denying a pre-trial suppression motion that had been filed by Defendant and that, therefore, a new trial should be granted.35 3~ By agreement of the parties, Mr. Tucker was permitted to testify via speaker phone. See N.T. 13-14, Post-Sentence Hr'g. The court found his testimony entirely credible as well. 32 N.T. 14-19, Post-Sentence Hr'g. 33 Def.'s Post Sentence Mots., filed Apr. 24, 2002, paras. 10-17. 34 Id. 35 Order of Ct., January 11, 2002. At the hearing held on April 11, 2002, Defendant was permitted, pursuant to an agreement of counsel, to amend the original motion to reflect this contention. See N.T. 48-68, Pre-Trial Hr'g. 6 The pretrial hearing on Defendant's suppression motion had been held on April 11, 2002. At the hearing, the testimony of two law enforcement officers who participated in the arrest of Defendant and subsequent search of Defendant's home was presented.36 Their testimony may be summarized as follows: Soon after midnight on the roaming of Thursday, September 6, 2001, Trooper Jason Carbaugh of the Pennsylvania State Police arrived at Defendant's home in response to a dispatch from a 911 operator who had received a call from Defendant in which Defendant stated that he had shot "an intruder.''37 After arriving at the scene, Trooper Carbaugh and other law enforcement officials ordered Defendant to come outside of the house, and, when Defendant complied, Defendant was arrested.38 Police conducted a five-minute "initial entry" of the home to secure the immediate area of arrest, and Trooper Carbaugh located the victim outside of an adjacent house (to which the victim had run after being shat).39 Both Defendant and the victim appeared to have been drinking.4° At 12:35 a.m., after Defendant was in custody and the victim was being assisted, police entered Defendant's home a second time to conduct a protective sweep.4~ During this sweep, police discovered Ms. Eichelberger hiding in a bathroom of the home. Ms. Eichelberger, who appeared to be intoxicated, refused to comply with police orders to come out of the bathroom and was forcibly removed from the hame.42 After detaining Ms. Eichelberger, police entered the home to complete the protective sweep, which had 36 See N.T. 48-68, Pre-Trial Hr'g. 37 N.T. 58-59, Pre-Trial Hr'g. 38 N.T. 59-60, Pre-Trial Hr'g. 39 N.T. 60-61, Pre-Trial Hr'g; Def.'s Ex. 10, Pre-Trial Hr'g, Jan. 11, 2002 (hereinafter Def.'s / P1.'s Ex. , Pre-Trial Hr'g). 4o See, e.g., N.T. 24, 72, Pre-Trial Hr'g; see also Police Criminal Campl., Commomvealth v. Quatrara, No. CR-123-01 (Pa. Magis. D. 09-3-02 Sept. 27, 2001) (affidavit of probable cause). 4~ N.T. 61-62, Pre-Trial Hr'g; Def.'s Ex. 10, Pre-Trial Hr'g. 42 N.T. 24, 49, 60-66, Pre-Trial Hr'g; see Def.'s Ex. 6, Pre-Trial Hr'g. 7 been interrupted by the discovery of Ms. Eichelberger.43 Police were inside the home from 12:45 a.m. until 12:50 a.m. Subsequently, police entered the house again, from 1:15 a.m. until 1:25 a.m. to conclude the sweep.44 During these entries, police did not remove or seize any materials from the home.45 Following these events, police secured a warrant to search Defendant's home and his vehicle and to seize "handguns, handgun ammunition, expended handgun shell casings and bullets, any body fluids..., hair, fibers," and the victim's gray bicycle, which the victim had stated was in the back of a vehicle parked at Defendant's home.46 in addition to recounting information arising out of law enforcement contact with Defendant, the victim and Ms. Eichelberger, the affidavit of probable cause indicated that police had observed part of a bullet, a bullet casing, blood spots, and two handguns inside Defendant's home, as well as a gray bicycle in the back of a vehicle.47 At trial, some of the evidence collected as a result of the search, including a pistol48 and a bicycle,® was admitted into evidence. Also introduced into evidence was a statement by Ms. Eichelberger, made shortly after she was discovered by police in Defendant's home, in which she stated that she did not know what was "going on" with respect to the shooting and the events preceding it and that she had been sleeping the "whole time." Ms. Eichelberger later admitted that this statement was false. Third Assignment of Error. Defendant's third assignment of error, titled "Motion To Modify Sentence To Preclude the imposition of the Mandatory Minimum Sentence," 43 N.T. 65-67, Pre-Trial Hr'g. 44 Def.'s Ex. 10, Pre-Trial Hr'g. 45 N.T. 67, Pre-Trial Hr'g. 46 Def.'s Ex. 6, Pre-Trial Hr'g; see N.T. 49-50, Pre-Trial Hr'g. The vehicle was owned by Ms. Eichelberger. N.T. 51, Pre-Trial Hr'g. 47 Def.'s Ex. 6, Pre-Trial Hr'g. 48 See Commonwealth's Ex. 9 (Ruger 9 millimeter semi-automatic P95), Trial, March 5, 2001 (hereinafter Commonwealth's/Def.'s Ex. , Trial). 49 See Commonwealth's Ex. 8, Trial. alleged that the Commonwealth, as part of the "sentencing guideline sheets provided to the defendant at his formal arraignment," notified Defendant that it would not pursue a mandatory minimum sentence in the present case.5° Defendant contended that, but for this notification, he would not have testified in his own defense, and that this testimony, in which Defendant admitted that he had used a gun to shoot the victim, prejudiced his ability to challenge the mandatory aspect of the sentence.5~ Prior to trial and as a courtesy, the Commonwealth had provided to Defendant copies of prospective sentencing guideline sheets, which indicated, in the area marked for that purpose, that "[n]one" of the statutory mandatory minimum sentencing provisions was applicable.52 Further, the individual who prepared the sheets on behalf of the Commonwealth did not mark, in the areas provided, that the mandatory minimum sentence applicable to an offense committed using a visible firearm was applicable.53 The present case was, obviously, one in which a mandatory sentence could be applicable, depending on the verdict of the jury. It is clear that Defendant's counsel did not seek clarification from counsel for the Commonwealth as to whether the prospective guideline sheets, prepared on behalf of the Commonwealth and sent to Defendant as a courtesy, actually reflected a decision of the Commonwealth to forgo the benefit of a mandatory minimum sentence and to notify Defendant of that decision, or merely represented a clerical error. At the sentencing hearing, Defendant's counsel argued that Defendant's decision to testify had been based, in substantial part, on the perceived decision of the Commonwealth not to pursue the mandatory minimum sentence.55 Defendant's counsel 50 Def.'s Post Sentence Mots., filed Apr. 24, 2002, paras. 18-23. 5~ ld' 52 See Def.'s Exs. 1-9, Hr'g, Apr. 16, 2002 (hereinafter Def.'s Ex. __ see a/so N.T. 6-7, Hr'g, Apr. 16, 2002 (hereinafter N.T. __ 53 Def.'s Exs. 1-9, Sentencing Hr'g. 54 N.T. 3, Sentencing Hr'g. 55 N.T. 3-4, Sentencing Hr'g. , Sentencing Hr'g); , Sentencing Hr'g). 9 contended that, although the victim had identified the gun used in the shooting, he "would [have been] surprised if [the victim could have] actually [said] that was the particular gun.''56 According to Defendant's argument, if he had not believed that the Commonwealth would not pursue the visible firearm minimum sentence, he would not have testified that the gun was, in fact, his own and that he had used it to shoot the victim. Therefore, "there still would have been an opportunity for [Defendant] to argue reasonable doubt that [he] was not the shooter.''57 Fourth Assignment of Error. Defendant's fourth assignment of error, also titled "Motion To Modify Sentence To Preclude the Imposition of the Mandatory Minimum Sentence," contended that, because no evidence was presented at sentencing to satisfy the elements of the applicable mandatory minimum sentencing provision, the Commonwealth failed to meet its burden of proving those elements and the sentence should be modified accordingly.5a At trial,59 the victim, Mr. Walters, testified that, on the night of the shooting, after he had entered Defendant's home with Ms. Eichelberger, she had called Mr. Walters to follow her down the hallway toward Defendant's bedroom.® According to his testimony, Ms. Eichelberger, after turning several lights on inside the house, had alerted Defendant, who was lying on a mattress in the bedroom, to the presence of Mr. Walters)~ With respect to the events that occurred soon thereafter, Mr. Walters testified as follows: And then [Defendant] goes, so are you ready to talk.'? And I go, yeah, sure. And I'm standing in the hallway in front of his bedroom, and I see his hands coming over his head, and I noticed.., he had a gun in his hand. 56 N.T. 3, Sentencing Hr'g. 57 N.T. 3, Sentencing Hr'g. 5a Def.'s Post Sentence Mots., filed Apr. 24, 2002, paras. 24-27. 59 The Commonwealth did not offer evidence at the sentencing hearing with respect to the elements of the mandatory minimum sentencing provisions 60 N.T. 26-27, Walters Trial Test. 61 N.T. 27, Walters Trial Test. 10 And the gun came over his head, and I seen it at midway, ... and I started to try to get out of the way [out] the doorway. And a shot fired off, and it spun me around. And I went down the hallway, and I got out of the house.62 During his testimony, Mr. Walters identified the pistol with which Defendant had shot 63 him and described the resultant injuries in his torso area. Fifth Assignment of Error. Defendant's fifth assignment of error, titled "Motion for Judgment of Acquittal Based upon Inherently Antagonistic Jury Verdicts," contended that the "jury' s acquittal of the Defendant on the charge of Criminal Attempt to Commit Murder" was "inherently antagonistic" with respect to the finding of guilt on the other charges for the following reasons: a. For the jury to acquit the Defendant on the Criminal Attempt to Commit Murder charges, the jury must have reasoned that the Defendant was acting in self-defense when he shot [the victim]. b. If the jury believed the Defendant was acting in self defense, the jury could not also be of the opinion that the Defendant intended only to cause life threatening injuries to [the victim].64 In his brief submitted in support of the post-sentence motion, Defendant did not include a discussion of this issue.65 In its charge to the jury, the court defined the various offenses with which Defendant was charged. With respect to the offense of attempted murder, the court stated that a guilty verdict was dependent, inter alia, upon a finding that the accused had a "specific intent to kill," meaning that the accused had a "fully formed intent to kill and [had been] conscious of his own intention." The court instructed the jury to "consider all the evidence regarding [Defendant's] words and conduct and the attending circumstances that may show his state of mind." With respect to the offense of aggravated assault 62 N.T. 27-28, Walters Trial Test. 63 N.T. 28-29, Walters Trial Test. The pistol was identified at trial as a "Ruger 9 millimeter semi-automatic P95." N.T. 28, Walters Trial Test. 64 Def.'s Post Sentence Mots., filed Apr. 24, 2002, paras. 28-30. 65 See C.C.R.P. 210-7 ("Issues raised, but not briefed, shall be deemed abandoned."). 11 involving an attempt to cause serious bodily injury, the court instructed that a guilty verdict required a finding that the accused acted with "a conscious object or purpose to cause such serious bodily injury." Further, the court instructed the jury that a guilty verdict on the charge of recklessly endangering was dependent, inter alia, upon a finding that the accused "consciously disregard[ed] a substantial and unjustified risk that serious bodily injury [would] result from his conduct." DISCUSSION Statement of Law General. Section 2501 of the Crimes Code, which defines the offense of criminal homicide, provides, in pertinent part, as follows: A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being. 18 Pa. C.S. § 2501. A person is guilty of criminal attempt if the person, "with intent to commit a specific crime,.., does any act which constitutes a substantial step toward the commission of that crime." 18 Pa. C.S. 901(a). The intent element of attempted criminal homicide requires that the individual had an actual intent to kill; it is not satisfied by proof that the individual acted knowingly or recklessly or had an intent to cause only substantial bodily harm, rather than death. Commonrvealth v. Anderson, 538 Pa. 574, 582- 83, 650 A.2d 20, 24 (1994); see also Commonwealth v. Anderson, 416 Pa. Super. 203, 224, 610 A.2d 1042, 1052 (1992), rev'd on other grounds, 538 Pa. 574, 650 A.2d 20 (1994). Section 2702(a) of the Crimes Code, which defines the offense of aggravated assault, provides, in pertinent part, as follows: A person is guilty of aggravated assault if he: (1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; [or] (4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon .... 12 18 Pa. C.S. § 2702(a). Section 2705 of the Crimes Code, which defines the offense of recklessly endangering another person, provides as follows: A person commits [reckless endangerment].., if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. 18 Pa. C.S. § 2705. Section 2701(a) of the Crimes Code, which defines the offense of simple assault, provides, in pertinent part, as follows: A person is guilty of assault if he: (1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another; [or] (2) negligently causes bodily injury to another with a deadly weapon .... 18 Pa. C.S. § 2701(a). Ex Parte ~luror Contact. The Pennsylvania Supreme Court has rejected the adoption of a per se rule that a new trial must be granted whenever ex parte contact between a juror and a witness or court official occurs. Commonwealth v. Mosley, 535 Pa. 549, 555, 637 A.2d 246, 249 (1993). Rather, only when such contact is shown to have created "a reasonable likelihood of prejudice" to the defendant is the contact considered to be sufficiently harmful that a new trial is justified. Id. at 554-55, 637 A.2d at 248 (quoting Commonwealth v. Bradley, 501 Pa. 25, 36, 459 A.2d 733, 739 (1983)); cf. Commonwealth v. Story, 476 Pa. 391, 409, 383 A.2d 155, 164 (1978) (quoting Commonwealth v. Davis, 452 Pa. 171, 178, 305 A.2d 715, 719 (1973)) (stating that, when no "reasonable possibility" exists that error contributed to verdict, error is harmless). The trial court has discretion to determine whether prejudice resulted from an encounter based on considerations such as the role of the witness or official in the trial sub judice, the importance of credibility determinations to the resolution of the case, and the nature and extent of the contact between the juror and official. See Mosley, 535 Pa. at 556-57, 637 A.2d at 249-50. Even brief, "unexpected" and "cordial encounter[s]" between a juror and 13 court official may exert a "subconscious influence or bias" against the defendant; however, if the juror can credibly testify to a satisfactory and harmless explanation of the contacts, the grant of a new trial is not justified. Id; see also Rushen v. Spain, 464 U.S. 114, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983) (applying harmless-error standard to ex parte contacts between court and juror); cf Story, 476 Pa. at 409, 383 A.2d at 164. Protective Sweeps. Although a warrant generally is required to search an individual's home, an exception has been recognized under both the Fourth Amendment to the United States Constitution and Article One, Section Nine, of the Pennsylvania Constitution for circumstances in which police conduct a sweep of the home in order to protect themselves from potential threats to their safety or to prevent the destruction of evidence. Marylandv. Buie, 494 U.S. 325, 331-37, 110 S. Ct. 1093, 1097-100, 108 L. Ed. 2d 276, 284-88 (1990); Commonwealth v. Taylor, 565 Pa. 140, 149-50, 771 A.2d 1261, 1266-67 (2001) (stating that warrant exception for protective sweeps under Pennsylvania Constitution mirrors that under the United States Constitution), cert. denied, 122 S. Ct. 462, 151 L. Ed. 2d 380 (2001); see also Kirk v. Louisiana, 122 S. Ct. 2458 (2002) (per curiam). Under the protective-sweep doctrine, officers are permitted to carry out a limited search of the areas immediately surrounding the location of the arrest "without a showing even of reasonable suspicion." Taylor, 565 Pa. at 150, 771 A.2d at 1267. Police may conduct a search of a more extensive area "provided that the officer[s] who conducted the sweep can articulate specific facts to justify a reasonable fear for the safety of [themselves or] others." Id Accordingly, even if an arrest occurs outside of a suspect's home, police may sweep the interior of the home if there exist "articulable facts which, taken together with the rational inferences form those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id at 151, 771 A.2d at 1267-68 (quoting Buie, 494 U.S. at 334, 110 S. Ct. at 1098, 108 L. Ed. 2d at 286). Although no "crime-scene exception" to the warrant requirement exists, Judge Kelly of the Pennsylvania Superior Court has aptly observed: 14 Normally, police are called to the scene of a potential murder and briefly conduct an investigation of the crime scene, searching for whatever evidence may have been left behind. Clues discovered during this initial crime scene search often include incriminating yet evanescent and easily destroyable evidence such as bloodstains, fingerprints, and signs of entry and egress. These in turn are often later used to justify another, more intrusive search of the crime scene authorized by warrant. Commonwealth v. Bagley, 408 Pa. Super. 188, 219 n.3, 596 A.2d 811, 826 n.3 (1991) (Kelly, J., concurring) (citing Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 (1978)). During a protective sweep, or any limited search performed under exigent circumstances, police are constitutionally justified in seizing evidence that is in plain view or in detaining individuals who are found in the area. See Buie, 494 U.S. at 331-37, 110 S. Ct. at 1097-100, 108 L. Ed. 2d at 284-88; Taylor, 565 Pa. at 151-52, 771 A.2d at 1268. Mandatory Sentence for Weapons Offenses. Section 9712 of the Judicial Code, which prescribes the mandatory minimum sentence for violent offenses committed with a visible firearm, provides, in pertinent part, as follows: (a) Mandatory sentence.--... [A]ny person who is convicted in any court of this Commonwealth of a crime of violence[66].., shall, if the person visibly possessed a firearm or a replica of a firearm, whether or not the firearm or replica was loaded or functional, that placed the victim in reasonable fear of death or serious bodily injury, during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement .... (b) Proof at sentencing.--Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined 66 A "crime of violence," as used in this section, is defined to include, inter alia, "aggravated assault as defined in 18 Pa. C.S. § 2702(a)(1) or (2) (relating to aggravated assault).., or criminal attempt.., to commit murder." Act of March 8, 1982, P.L. 169, § 3, as amended, 42 Pa. C.S. § 9714, cited in Act of Dec. 30, 1974, P.L. 1052, § 1, as amended, 42 Pa. C.S. § 9712(a) (2001). 15 at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable. (c) Authority of court in sentencing.--There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) .... 42 Pa. C.S. § 9712(a)-(c). Under this section, the court does not have discretion to impose a sentence of less than five years total confinement under circumstances in which the Commonwealth has provided notice prior to sentencing that it intends to proceed under this section and has proven, by a preponderance of the evidence presented either at trial or at sentencing, that a firearm used in the commission of the offense was seen by or produced a "visible effect" of fear on the part of the victim. Commonwealth v. Townsend, 747 A.2d 376, 379 (Pa. Super. Ct. 2000); see 42 Pa. C.S § 9712(a)-(c). Inconsistent Verdicts. Generally, verdict consistency is not required if each verdict is supported by sufficient evidence. Commonwealth v. Laird, 555 Pa. 629, 648, 726 A.2d 346, 355 (1999). "The rationale for permitting inconsistency in criminal verdicts is that it is the function of the fact-finder.., to mete out sufficient punishment." Commonwealth v. Peer, 454 Pa. Super. 109, 117, 684 A.2d 1077, 1081 (1996). Inconsistent verdicts are barred only when one verdict is necessarily predicated on a factual finding that negates an element of the second verdict. Commonwealth v. Fow/in, 551 Pa. 414, 418-19, 710 A.2d 1130, 1132-33 (1998); In re Smith, 396 Pa. Super. 624, 638-39, 579 A.2d 889, 896 (1990). An example of such "irreconcilably" inconsistent verdicts arises when the trier of fact has returned both a verdict of not guilty of murder based on a finding of justifiable homicide and a verdict of guilty of recklessly endangering another person or of aggravated assault. Id Because the finding of justifiable self-defense "negates any element of recklessness," the verdicts are considered "mutually exclusive," meaning that the court is barred from entering the inconsistent guilty verdict. Fow/in, 551 Pa. at 418-19, 710 A.2d at 1132-33 (quoting Commonwealth v. Heatherington, 477 Pa. 562, 569, 385 A.2d 338, 342 (1978)). However, for such preclusion to arise, the first verdict must have been manifestly based on the negativing 16 finding; it is not sufficient that the verdict merely may have been based on the conflicting finding. See Commonwealth v. Young, 561 Pa. 34, 51,748 A.2d 166, 174-75 (1999). Application of Law to Facts Ex Parte Juror Contact. In the present case, the court is of the view that the ex parte contact between a juror in the case and a corporal of the Pennsylvania State Police did not create a potential for prejudice that would warrant the award of a new trial. Ex parte contacts require a new trial only when surrounding circumstances support an inference that bias may have resulted and when no reasonable explanation is offered to explain the contact. See Mosley, 535 Pa. at 556-57, 637 A.2d at 249-50. In this case, Corporal Junkin, who was not directly involved in any aspect of Defendant's case, and Mr. Tucker encountered each other only on three brief occasions before or during the course of the trial. In none of these instances did Corporal Junkin attempt to influence Mr. Tucker in any manner, wear his official uniform, have or suggest he had knowledge of the facts or issues involved in Defendant's case, or even speak about the case. The only statements regarding Defendant's case were made by, not to, Mr. Tucker and related to his perception of the conduct of the attorneys involved in the matter.67 The court is of the view that, in this situation, in which the law enforcement officer was not involved in the case sub judice, did not seek to influence the juror through dress or conduct, and made no statements to the juror about the case, no bias can reasonably be inferred. Cf Commonwealth v. 14/instead, 377 Pa. Super. 483, 493-95, 547 A.2d 788, 793-94 (1988) (finding no prejudice from ex parte communications in courthouse between prosecutor and juror "[b]ecause the prosecutor and the juror did not discuss the case and there was no attempt to influence the outcome of the trial"). Further, harmless explanations of the contacts were offered by both Corporal Junkin and Mr. Tucker. On two of the three encounters, Corporal Junkin met with Mr. 67 Even if, in some circumstances, bias could be imputed solely on the basis of statements made by a juror to a third party, in this case, testimony suggested that Mr. Tucker's statements were equally critical of both attorneys. Thus, if any bias could be imputed, it would be against both attorneys, rather than against Defendant alone, and would not warrant the granting of a new trial. 17 Tucker at the latter's house for the sole purpose of completing a proposed sale of the house. No exchange of views about the case occurred during either visit. On the third encounter, which occurred in the courtroom, Corporal Junkin noticed Mr. Tucker only because Corporal Junkin happened to be showing another law enforcement officer around the courthouse. At that time, neither individual even spoke to the other. The court found these explanations, which were not challenged by Defendant, entirely credible. Because, as discussed previously, no prejudice toward Defendant resulted from the contacts, and because credible harmless explanations of the contacts were provided, it is believed that the ex parte contacts do not warrant the award of a new trial. Protective Sweeps. In the present case, the court is of the view that Defendant has not established grounds to warrant an award of a new trial on the basis of the limited sweeps within Defendant's home at the time of the arrest. This view is premised both on the merits of Defendant's motion and on the doctrine of harmless error. With respect to the merits of the motion, it has been noted that, following an arrest outside of a suspect's home, police may conduct a protective sweep of the interior of the home provided that there exist "articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Taylor, 565 Pa. at 151,771 A.2d at 1267-68 (quoting Buie, 494 U.S. at 334, 110 S. Ct. at 1098, 108 L. Ed. 2d at 286). In the present case, law enforcement officers testified that, when they arrived at Defendant's home, they were not fully aware of the events that had transpired or of the potential threats from individuals at the scene. Rather, police knew only that a shooting had occurred, that a wounded victim was located next door, that the shooter had appeared from within the home, and that at least one other person, later identified as Ms. Eichelberger, was involved and was inside Defendant's home. The proximity to the crime scene of at least one dangerous weapon and the general uncertainty regarding the presence of other individuals in the area suggest that police were justified in believing that other persons inside the home may have posed a threat to the safety of individuals at the scene. Thus, police were justified in conducting the first 18 protective sweep of the home, and evidence obtained during this sweep, including the discovery of Ms. Eichelberger and the statement made by her, was not constitutionally required to be suppressed.68 The court is also of the opinion that police were justified in conducting the subsequent second and third protective sweeps of Defendant's home,69 neither of which lasted for more than fifteen minutes and both of which occurred within an hour after the arrest and initial entry. With respect to the second sweep, law enforcement officers testified that it was necessitated by the discovery of Ms. Eichelberger, which prevented police from completing the first sweep. Ms. Eichelberger, along with other persons at the scene, appeared to be intoxicated at the time of these events, and, accordingly, could provide little assistance to police regarding the possibility of other assailants. Because police had reason to believe that other persons in the home could constitute a threat to their safety, particularly because a dangerous weapon remained in the home, police were 68 It should be noted that police conducted a five-minute "initial entry" of the home prior to the first protective sweep. See N.T. 60, Pre-Trial Hr'g; Def.'s Ex. 10, Pre-Trial Hr'g. Although little testimony was offered concerning the scope or purpose of this entry, it may be inferred, from the facts that only one law enforcement official was involved and that it occurred shortly after the arrest of Defendant, see Def.'s Ex. 10, Pre-Trial Hr'g, that the entry was to secure the immediate area of the arrest, which occurred outside of the front door of Defendant's home, see N.T. 59-61. Because the police did not need to have even reasonable suspicion to conduct such an entry, see Buie, 494 U.S. at 331-37, 110 S. Ct. at 1097-100, 108 L. Ed. 2d at 284-88; Taylor, 565 Pa. at 151-52, 771 A.2d at 1268, and because Defendant has identified no issues relating to evidence procured during it, see Def.'s Post Sentence Mots., filed Apr. 24, 2002, paras. 10-17, the court is of the view that no issue of merit was presented with respect to the initial entry. 69 Further, it is believed that Defendant challenged only those aspects of the denial of the suppression motion that related to evidence obtained during the first protective sweep of the home. In Defendant's post-sentence motion, Defendant identified, as evidence that should have been suppressed, only the discovery of the "co-defendant[, Ms. Eichelberger,] hiding in the residence's bathroom and one untruthful statement made by the co-defendant," both of which were obtained as a result of the first sweep of Defendant's house. Thus, Defendant's post-sentence motion raised only issues regarding the introduction of evidence relating to the first sweep, which, as discussed previously, was justified in the court's opinion. See Pa. R.C.P. 227. l(b); see also Commonrvealth v. Metz, 534 Pa. 341,345, 633 A.2d 125, 127 (1993). 19 justified in conducting subsequent protective sweeps of the home following the one that had been interrupted by the discovery of Ms. Eichelberger. The limited searches at issue in this case were conducted in response to a report of a possible crime, covered only the environs of the crime scene, and did not result in the seizure of any evidence discovered in plain view. Rather, the police performed the sweeps for the legitimate purposes of protecting individuals at the scene and of preserving evidence. Police conducted a more intrusive search and seizure of evidence at the scene only after obtaining a valid search warrant. As such, the evidence seized pursuant to the execution of the search warrant was not constitutionally required to be suppressed. With respect to the doctrine of harmless error, the Pennsylvania Supreme Court has stated: Harmless error exists if the reviewing court is convinced from the record that (1) the error did not prejudice the defendant or the prejudice was de minimis, (2) the erroneously admitted evidence was merely cumulative of other untainted evidence, or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the guilty verdict. Commonwealth v. Petroll, 558 Pa. 565, 586, 738 A.2d 993, 1005 (1999). In the present case, it is believed that no prejudice to Defendant resulted from the admission at trial of the physical evidence obtained from Defendant's home pursuant to the search warrant. The primary issues in this case involved the motivation for the shooting and the acts and events that preceded it, rather than the fact of the shooting itself or the identity of the assailant. After the shooting, Defendant personally reported to police that he had shot the victim and that the event had occurred inside Defendant's home. The physical evidence obtained pursuant to the search warrant did little more than confirm the events reported by Defendant himself when he summoned the police, and, accordingly, it is believed that the court's refusal to suppress this evidence related to an issue of harmless effect. Cf. Commonwealth v. Tolbert, 448 Pa. Super. 189, 216, 670 A.2d 1172, 1186 (1995) (finding 20 trial court's admission of evidence relating to the defendant's actions constituted harmless error when the defendant previously admitted to substantially the same actions). The court is also of the opinion that the introduction of evidence relating to the discovery and statement of Ms. Eichelberger resulted in minimal, if any, prejudice toward Defendant. Because Ms. Eichelberger was arguably concealing herself in the bathroom of Defendant's home at the time of her discovery and because she later admitted that one statement that she made soon thereafter was not accurate, this evidence potentially would have supported a finding by the jury that she was conscious of her own guilt.7° In turn, such a finding might have supported a finding that Ms. Eichelberger and Defendant had participated in a conspiracy with the object of shooting Ms. Walters. However, the jury acquitted Defendant of all offenses involving criminal conspiracy. Absent a finding that the two co-defendants conspired to commit a crime, the finding that Ms. Eichelberger was conscious of some level of culpability in the events at issue could have had little, if any, prejudicial effect against Defendant. Thus, the introduction of this evidence related to an issue of harmless effect. Cf Commonwealth v. McHugh, 187 Pa. Super. 568, 574, 145 A.2d 896, 900 (1958) (finding lack of prejudice against the defendant, who was convicted of criminal conspiracy, from admission of statement that "was directed primarily at the acts of destruction... [when] the jury acquitted all defendants of maliciously destroying the property"). Mandatory Sentence for Weapons Offenses. With respect to Defendant's contention that imposition of the mandatory minimum sentence should have been precluded because the Commonwealth had "notified" Defendant before trial that it would not seek such a sentence, the court is of the view that the sentence in this case was 7o See Commonwealth v. Rios, 554 Pa. 419, 433-34, 721 A.2d 1049, 1056 (1998) (stating that "concealment tend[ed] to show consciousness of guilt" when the accused was found hiding in a closet in his girlfriend's apartment); Commonwealth v. Meadows, 381 Pa. Super. 354, 362, 553 A.2d 1006, 1010 (1989) (quoting Commonwealth v. Bolish, 381 Pa. 500, 524, 113 A.2d 464, 476 (1955)) ("[F]alse or contradictory statements by the accused are admissible since the jury may infer therefrom that they were made with an intent to divert suspicion or to mislead the police or other authorities, or to establish an alibi or innocence, and hence are indicatory of [consciousness of] guilt."). 21 statutorily compelled under the circumstances. Under the applicable statute, if the Commonwealth has met its burden of proving that a firearm was used in the commission of the offense and has provided Defendant with "reasonable notice" of its intention to seek the mandatory minimum sentence at some time "after conviction and before sentencing," the court "shall" impose "a minimum sentence of at least five years of total confinement." 42 Pa. C.S. § 9712(a)-(b). Further, the statute provides that "there shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence" than the one prescribed by this section. 42 Pa. C.S. § 9712(c). In the present case, the Commonwealth met the statutory requirements by notifying Defendant "after conviction and before sentencing" that it would seek the mandatory minimum sentence. Under such circumstances, in which the Commonwealth has provided the notice required by the statute, the court generally lacks discretion to impose a sentence of 7~ less than five years total confinement, the sentence imposed in this case. With respect to Defendant's contention that, at the sentencing hearing, the Commonwealth failed to meet its burden of proof regarding the elements of the mandatory minimum sentencing provision, the court is of the opinion that the Commonwealth met its burden of proof thorough evidence introduced at trial. Under the applicable statute, the Commonwealth must prove, by a preponderance of the evidence presented either at trial or at sentencing, that a firearm was used in the commission of the offense and that it produced a "visible effect" of fear on the part of the victim. Townsend, 747 A.2d at 379; see 42 Pa. C.S. § 9712(a)-(c). In the present case, the victim, whom the trier-of-fact found to be credible, testified that he had seen Defendant brandish a gun, that he had seen the gun and attempted to flee to protect himself, that Defendant had shot him 71 Defendant's contention that the statutory mandate upon the court should be disregarded in view of the erroneous designation on a sentencing form provided to Defendant's counsel prior to trial is not compelling in the court's view. Certain aspects of the case obviously fell within the parameters of the mandatory sentencing provisions, and, in the absence of confirmation by the prosecutor that the document was intended to convey a decision by the Commonwealth in advance of trial to forgo the benefit of the statutory provision, Defendant's construction of the document as binding notification of such a decision is neither reasonable nor fair. 22 with the gun, and that he had escaped from Defendant's house after being shot. Defendant presented no evidence to contradict this version of events, which, in the court's view, was sufficient to establish by a preponderance of the evidence that Defendant had used a firearm during the commission of the offense and that the victim 72 had seen the weapon. Inconsistent Verdicts'. In the present case, the court is of the view that the verdicts did not involve "mutually exclusive" findings so as to require the grant of a judgment of acquittal.73 Inconsistent verdicts must be overturned only in situations in which one verdict is necessarily predicated on a factual finding that negates an element of the second verdict. See Fou;lin, 551 Pa. at 419, 710 A.2d at 1133. Although Defendant contends that "the jury must have reasoned that the Defendant was acting in self- defense,''74 a finding that arguably would negate the elements of the other charges regarding recklessness, the court, in its charge to the jury, did not limit consideration to the issue of self-defense, and the record provides no indication that the jury predicated its verdict on this issue. Therefore, it cannot be said that the jury manifestly based its acquittal on the charge of attempted murder on a justification theory. Cf Fou;lin, 551 Pa. at 418-19, 710 A.2d 1132-33 (stating that Commonwealth admitted that the defendant acted in "justifiable self-defense"); Smith, 396 Pa. Super. at 638-39, 579 A.2d at 896 (stating that trial court, acting in its capacity as trier of fact, found that killing was justifiable). Under the statutory elements of attempted criminal homicide and the other offenses with which Defendant was charged, the jury could have acted consistently in concluding that Defendant was not guilty of attempted criminal homicide and yet guilty 72 But see N.T. 3, Sentencing Hr'g (arguing that Defendant was prevented from "argu[ing] reasonable doubt" that a gun was not used during the offense). 73 See also supra note 65 and accompanying text (identifying lack of discussion of inconsistent-verdict issue in Defendant's brief and citing Cumberland County Rule of Procedure 210-7, under which issues that are raised in a motion but not briefed are deemed waived). 74 Def.'s Post Sentence Mots., filed Apr. 24, 2002, para. 30. 23 of the other offenses. Criminal homicide differs from the other offenses with which Defendant was charged in that it requires the Commonwealth to prove that Defendant had an intent to kill, rather than a less culpable mental state. From the evidence presented in this case, particularly evidence that Defendant called for assistance soon after the shooting, it would have been reasonable for the jury to conclude that Defendant did not intend to kill Mr. Walters, and did not act in self-defense. Accordingly, the verdicts cannot be considered "mutually exclusive" and should not be disturbed provided that sufficient evidence exists to support the convictions. Cf. Commonwealth v. Barnyah 432 Pa. Super. 483, 493-94, 639 A.2d 40, 45 (1994) (refusing to overturn conviction on charge of aggravated assault when the defendant was acquitted on charges of first- and third-degree murder even though "intent elements of the.., charges overlap"). In the present case, the testimony of Mr. Walters provided sufficient evidence to support all elements of aggravated assault involving an attempt to cause serious bodily injury, aggravated assault involving an attempt to cause bodily injury to another with a deadly weapon, recklessly endangering another person, and simple assault. Mr. Walters testified that, after he had arrived at Defendant's home, Defendant spoke to him, brandished a gun, and shot him in the midsection. This evidence was sufficient to prove, at a minimum, that Defendant's conduct and mental state satisfied the elements of the offenses of which Defendant was convicted. For the foregoing reasons, the following order will be entered: ORDER OF COURT AND NOW, this 30th day of July, 2002, after careful consideration of Defendant's post-sentence motion, and for the reasons stated in accompanying opinion, the motion is denied. BY THE COURT, /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 24 Jonathan R. Birbeck, Esq. Chief Deputy District Attorney John A. Abom, Esq. 8 South Hanover Street Suite 204 Carlisle, PA 17013 Attorney for Defendant 25 COMMONWEALTH Vo JACOB QUATRARA OTN: E936197-3 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CHARGES: (3) (4) (5) AGGRAVATED ASSAULT RECK ENDANG ANOTHER PERSON SIMPLE ASSAULT NO. 01-1994 CRIMINAL TERM IN RE: DEFENDANT'S POST-SENTENCE MOTION BEFORE OLER~ J. ORDER OF COURT AND NOW, this 30th day of July, 2002, after careful consideration of Defendant's post-sentence motion, and for the reasons stated in accompanying opinion, the motion is denied. BY THE COURT, J. Wesley Oler, Jr., J. Jonathan R. Birbeck, Esq. Chief Deputy District Attorney John A. Abom, Esq. 8 South Hanover Street Suite 204 Carlisle, PA 17013 Attorney for Defendant