J. A32033/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEROME SHERWIN GRIER, :
:
Appellant : No. 1429 EDA 2013
Appeal from the Judgment of Sentence April 24, 2013
In the Court of Common Pleas of Chester County
Criminal Division No(s).: CP-15-CR-0001348-2011
BEFORE: PANELLA, OLSON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED OCTOBER 15, 2015
Appellant, Jerome Sherwin Grier,1 appeals from the judgment of
sentence entered in the Chester County Court of Common Pleas following a
jury trial and convictions for nine counts of possession with intent to deliver2
(“PWID”), nine counts of possession of a controlled substance, 3 forty-two
counts of criminal solicitation,4 fifteen counts of criminal use of a
*
Former Justice specially assigned to the Superior Court.
1
Appellant was tried with co-defendant Khye Rivas, whose appeal is
docketed at 2621 EDA 2013.
2
35 P.S. § 780-113(a)(30).
3
35 P.S. § 780-113(a)(16).
4
18 Pa.C.S. § 902(a).
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communication facility,5 one count of criminal conspiracy,6 and six counts of
dealing in proceeds of unlawful activities.7 Appellant contends the trial court
should have granted his motion to suppress the wiretapped recordings of his
telephone conversations as they exceeded the scope of the orders
authorizing the wiretaps, erred by permitting the introduction of evidence of
drugs and drug sales not relevant to Appellant, and improperly sentenced
him. We affirm Appellant’s convictions, but vacate the judgment of sentence
and remand for resentencing.
We glean the facts from the record, including the trial court’s opinion:8
The criminal charges in this case arose as a result of a
lengthy multi-agency police investigation . . . . The
investigation included wiretap authorization orders issued
by the Superior Court and the compilation of thousands of
intercepted communications regarding the purchasing,
selling and transferring of drugs and money. This
investigation resulted in [Appellant’s] arrest as well as the
arrest of fifteen other defendants who were involved in this
drug trafficking organization.
Trial Ct. Op., 8/28/13, at 1.
5
18 Pa.C.S. § 7512(a).
6
18 Pa.C.S. § 903(c).
7
18 Pa.C.S. § 5111(a)(1).
8
We state the facts in the light most favorable to the Commonwealth, as
Appellant challenges, inter alia, whether his motion to suppress should have
been granted. See generally Commonwealth v. Landis, 89 A.3d 694,
702 (Pa. Super. 2014).
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The order authorizing the wiretap of Phillip DiMatteo, the ringleader of
the drug organization, did not identify Appellant. The affidavit in support of
the Commonwealth’s wiretap application, however, mentioned Appellant:
29. The following is a result of toll analysis [of DiMatteo’s
telephone number] from December 7, 2009 through March
2, 2010, as well as pen register analysis from January 26,
2009 through March 2, 2010, are set forth below.
* * *
d. Telephone Number (610) 466-0889
Subscriber KL Bugg
808 Lumber Street
Coatesville, PA 19320
During the period of December 9, 2009 through March 2,
2010, there were total of 166 calls, 100 incoming calls
and 6 [sic] outgoing calls associated to telephone facility
(610) 466-0889. The telephone is subscribed to KL Bugg.
i. A Pennsylvania Department of Transportation check
for this address and listed subscriber resulted in no
information being found. Your affiants also conducted
various checks for KL Bugg and 808 Lumber Street, but
no information was found on both the name and
address. On 02/02/2010, [Appellant] was stopped by
the Coatesville Police Department. At the time of this
encounter, [Appellant] provided officers with his current
address, 808 Lumber Street, Coatesville, PA 19320. A
criminal history check and information obtained from
Chester County investigators revealed that [Appellant]
uses the date of birth of 03/21/1971. [Appellant] has
been issued Pennsylvania State Identification Number
#195-59-00-9 FBI# 903384LA9. The following is
information obtained from a Criminal History
Information check from NCIC: (National Crime
Information Center): On 04/20/1990, [Appellant] was
arrested by Caln Township Police Department for
CSDDCA (possession and possession with intent)
violations and sentenced to County probation and
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County prison 11-23 months incarceration. On
08/10/1995, [Appellant] was arrested by the Coatesville
Police Department for CSDDCA (possession) violations
and sentenced to one year County probation. On
08/09/1997, [Appellant] was arrested by Coatesville
Police Department for CSDDCA (possession) violations
and resisting arrest ([Appellant] plead [sic] guilty and
was sentenced to 6-12 months incarceration). On
11/25/2001, [Appellant] was arrested by Coatesville
Police Department for CSDDCA (possession with intent)
violations and sentenced to 3-6 years State Prison. On
02/02/2010 [Appellant] was arrested by the Coatesville
Police Department for CSDDCA (possession) violations
(disposition unreported due to charges just being filed,
a preliminary hearing is scheduled for March 24, 2010).
Ex. A to Appl. for an Order Authorizing the Interception of Electronic and
Wire Commc’ns, at ¶ 29(d); accord Commonwealth’s Trial Ex. 2;
Commonwealth’s Brief at 13-14.9 In addition to the wiretaps, the police
conducted extensive surveillance.
With respect to Appellant, the police intercepted numerous calls to
DiMatteo soliciting drugs. See, e.g., N.T. Trial, 1/10/13, at 91; Ex. C-36.10
Surveillance footage captured Appellant entering DiMatteo’s residence on
multiple occasions to obtain the drugs. See, e.g., N.T. Trial, 1/10/13, at 91,
101. The police testified about numerous conversations between Appellant
9
It appears the order sealing the affidavit was lifted. Moreover, the affidavit
was accepted by the trial court as an exhibit and the Commonwealth quoted
paragraph 29(d) in its brief, each of which was not filed under seal.
10
Commonwealth’s Exhibit C-36 is a three-ring binder with over three
hundred pages of transcribed calls over a period of three months between
DiMatteo and Appellant or co-defendant Khye Rivas.
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and DiMatteo regarding various drug transactions. See, e.g., id. at 192-94.
After a seven-day jury trial and four hours of deliberation, the jury found
Appellant guilty of the above crimes.
On April 24, 2013, the court sentenced Appellant to an aggregate total
of fourteen and three-quarters to twenty-nine and one-half years’
imprisonment. Those sentences included, inter alia, eight mandatory
minimum sentences based upon eight convictions for possession with intent
to deliver more than ten grams of cocaine each. Appellant did not file a
post-sentence motion. He timely appealed on May 15, 2013, and filed a
timely court-ordered Pa.R.A.P. 1925(b) statement. Appellant also filed an
untimely, supplemental Rule 1925(b) statement challenging the legality of
his sentence pursuant to Alleyne v. United States, 133 S. Ct. 2151
(2013).
Appellant raised the following issues:
Did the trial court err in failing to suppress the recordings
of the Appellant’s phone conversations when the seizure of
those conversations was a material deviation from the
authorizing orders of the Superior Court?
Did the trial court err in allowing irrelevant and unfairly
prejudicial evidence of drugs and drug sales which were
not directly linked to the Appellant?
Did the trial court violate the Appellant’s rights to due
process and to a jury trial by raising the sentencing floor
without having the jury determine the weight of the drugs
in question?
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Did the trial court err in denying the Appellant a Recidivism
Risk Reduction Initiative (RRRI) minimum sentence based
on his adjudication for resisting arrest?
Appellant’s Brief at 5.
In support of his first issue, Appellant argues that the Commonwealth,
in its application for a wiretap of DiMatteo’s telephone, averred that he
called DiMatteo 166 times. Id. at 20. Appellant reasons, therefore, that his
identity was “known” under 18 Pa.C.S. § 5712(a)(2), and thus, the
Commonwealth should have named him in the order authorizing the wiretap
of DiMatteo’s telephone. Id. Appellant contends that because the
Commonwealth failed to comply with Section 5712(a)(2), the court should
have suppressed the recorded conversations under Section 5721.1(b)(4), as
the interception materially deviated from the order authorizing the wiretap.
Id. at 27. We conclude Appellant is due no relief.
The standards governing a review of an order denying
suppression motion are well settled:
We are limited to determining whether the lower
court’s factual findings are supported by the record
and whether the legal conclusions drawn therefrom
are correct. We may consider the evidence of the
witnesses offered by the Commonwealth, as verdict
winner, and only so much of the evidence presented
by the defense that is not contradicted when
examined in the context of the record as a whole.
We are bound by facts supported by the record and
may reverse only if the legal conclusions reached by
the court were erroneous.
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Landis, 89 A.3d at 702 (citation omitted).11 We can also affirm on any
basis. Commonwealth v. Clouser, 998 A.2d 656, 661 n.3 (Pa. Super.
2010).
Section 5712 authorizes the issuance of a wiretap and states in
pertinent part:
(a) Authorizing orders.—An order authorizing the
interception of any wire, electronic or oral communication
shall state the following:
* * *
(2) The identity of, or a particular description of, the
person, if known, whose communications are to be
intercepted.
18 Pa.C.S. § 5712(a)(2).
Section 5721.1 identifies the limited bases upon which a defendant
may exclude an intercepted conversation and the exclusive nature of the
relief:
(b) Motion to exclude.—Any aggrieved person who is a
party to any proceeding in any court, board or agency of
this Commonwealth may move to exclude the contents of
any wire, electronic or oral communication, or evidence
derived therefrom, on any of the following grounds:
* * *
11
We acknowledge the holding of In re L.J., 79 A.3d 1073 (Pa. 2013), that
after October 30, 2013, the scope of review for a suppression issue is limited
to the record available to the suppression court. Id. at 1085, 1089 (stating
holding applies to “all litigation commenced Commonwealth-wide after the
filing of this decision”). Because the instant criminal complaint was filed
prior to October 30, 2013, In re L.J. does not apply.
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(3) The order of authorization issued under section
5712 is materially insufficient on its face.
* * *
(e) Exclusiveness of remedies and sanctions.—The
remedies and sanctions described in this subchapter with
respect to the interception of wire, electronic or oral
communications are the only judicial remedies and
sanctions for nonconstitutional violations of this subchapter
involving such communications.
18 Pa.C.S. § 5721.1(b)(3), (e). “[T]he Supreme Court of Pennsylvania has
held that suppression of evidence is an inappropriate remedy except where
suppression is necessary to protect fundamental constitutional rights.”
Commonwealth v. Doty, 498 A.2d 870, 886 (Pa. Super. 1985) (citations
omitted). In other words, “grounds for suppression based on
nonconstitutional violations of the Wiretap Act are limited to incriminating
evidence resulting from a wiretap based on an interception which was
unlawful or otherwise conducted in contravention of the judicial order, or
because the judicial order was insufficient on its face.” Commonwealth v.
Donahue, 630 A.2d 259, 279 (Pa. Super. 1993) (footnote omitted).
In Commonwealth v. Whitaker, 546 A.2d 6 (Pa. 1988), the
defendant sought to suppress wiretapped conversations on the basis that the
wiretap order did not identify him, as set forth in Section 5712(a)(2). Id.
at 8. In that case, the suppression court refused to suppress the intercepted
communications, reasoning
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that the foregoing statutory provision does not require that
a person be named in a wiretap application unless there is
probable cause to believe that such person’s
communications will be intercepted. On the basis that
probable cause was lacking with respect to appellant, the
suppression court ruled that the evidence against appellant
need not be suppressed.
Id. Our Supreme Court agreed, reasoning the statute “expressly limits the
situations in which individuals are to be specified by name in an application,
to wit, requiring identification of individuals who are ‘known,’ and who are
‘committing the offense,’ and only when it can be said that the individuals’
communications ‘are to be intercepted.’” Id. The focus is on whether the
Commonwealth has probable cause:12
[U]nless probable cause is present, an interception order
cannot be issued. It follows, therefore, that an application
for an interception order should not name as targets
individuals with respect to whom probable cause is lacking.
Clearly, an applicant for a wiretap cannot be expected
to name persons whose communications “are to be
12
The Doty Court discussed the framework for identifying the existence of
probable cause:
The standard for determining whether probable cause
existed is the same as that used to determine cause for
search warrants. . . . [I]n an application for a wiretap, the
Commonwealth must establish probable cause to believe
that (1) a person has or is about to commit one of the
offenses enumerated in the statute, (2) that
communications relating to that offense will be
transmitted, and (3) that such communications will be
intercepted on the facility under surveillance.
Doty, 498 A.2d at 882 (citations omitted).
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intercepted,” 18 Pa.C.S. § 5709(3)(i), supra (emphasis
added), when there are no probable grounds to believe
such communications will be intercepted. To require that
every person whose communications are in fact
intercepted have been named in an interception order
would require a high degree of omniscience indeed,
obviously not intended as an element of wiretapping
prerequisites.
Id. at 8-9.13 Applying these precepts to the facts, the Whitaker Court held
that suppression was not justified because, inter alia,
[t]here was no evidence of knowledge by investigating
authorities that [the defendant] had ever communicated
on the phone lines that were to be tapped. Nor was there
any indication that [the defendant] would continue to
engage in [criminal] activities with [one of the individuals
whose communications were to be intercepted] and begin
utilizing the intercepted lines.
Id. at 9-10.
Instantly, similar to Whitaker, the Commonwealth lacked knowledge
that Appellant—and not KL Bugg—was communicating with DiMatteo. Cf.
Whitaker, 546 A.2d at 9-10. While the Commonwealth was aware that
Appellant provided an address matching the address for KL Bugg and
Appellant had an extensive criminal history for drug violations, nothing of
record establishes the Commonwealth’s knowledge that Appellant was using
13
The Whitaker Court approvingly cited United States v. Kahn, 415 U.S.
143 (1974), in which “it was held that the naming of an individual in an
application for an interception order is necessary only when investigating
authorities have probable cause to believe that the individual whose
communications are to be intercepted is committing the offense for which
the wiretap is sought.” Whitaker, 546 A.2d at 8.
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that telephone number to speak with DiMatteo and that the 166 calls related
to the offenses at issue. Cf. id. at 8-10 (citing Kahn, 415 U.S. at 155);
Doty, 498 A.2d at 882. Accordingly, we discern no basis for relief and
affirm the trial court’s disposition of this issue, albeit on other grounds. See
Clouser, 998 A.2d at 661 n.3.
In support of his second issue, Appellant contends the trial court
abused its discretion by permitting the introduction of evidence about the
DiMatteo drug enterprise. Appellant objects to, inter alia, the introduction of
an organizational chart detailing DiMatteo’s drug enterprise and a bag of
cocaine briefly displayed to the jury. See N.T. Trial, 1/8/13, at 135; N.T.
Trial, 1/9/13, at 185. The cocaine was seized in a transaction not connected
to Appellant and was used by the Commonwealth to establish DiMatteo “was
a big drug dealer.” N.T. Trial, 1/9/13, at 186. Appellant challenges the
Commonwealth’s use of such evidence as background on DiMatteo and how
it led to the instant charges. We decline to grant relief to Appellant.
The standard of review follows:
The admission of evidence is within the sound discretion
of the trial court and will be reversed only upon a showing
that the trial court clearly abused its discretion. Further,
an erroneous ruling by a trial court on an evidentiary issue
does not require us to grant relief where the error is
harmless.
An error will be deemed harmless where the appellate
court concludes beyond a reasonable doubt that the error
could not have contributed to the verdict. If there is a
reasonable possibility that the error may have contributed
to the verdict, it is not harmless.
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Commonwealth v. Northrip, 945 A.2d 198, 203 (Pa. Super. 2008)
(citation and formatting omitted).
After careful review of the parties’ briefs on this issue, the record, and
the decision of the Honorable Phyllis R. Streitel, we affirm this issue on the
basis of the trial court’s decision. See Trial Ct. Op., 8/28/13, at 17-21
(holding court gave extensive cautionary instructions on multiple occasions
with respect to admitted evidence and jury presumed to heed such
instructions). Even presuming the court erred, we would hold such error
harmless given the extensive intercepted communications inculpating
Appellant. See Northrip, 945 A.2d at 203.
For his third issue, Appellant challenges the legality of his sentence.14
Specifically, he claims that because the jury never determined the weight of
the cocaine at issue, the court erred by imposing the mandatory minimum
sentences. We hold Appellant is entitled to relief.
In Commonwealth v. Dixon, 53 A.3d 839 (Pa. Super. 2012), this
Court set forth the following standard of review:
Application of a mandatory sentencing provision
implicates the legality, not the discretionary, aspects of
sentencing. In reviewing the trial court’s interpretation of
14
We acknowledge that Appellant raised this issue in an untimely
supplemental Rule 1925(b) statement. It is well settled, however, that a
challenge to the legality of a sentence generally cannot be waived on direct
appeal. See Commonwealth v. Gibbs, 981 A.2d 274, 284 (Pa. Super.
2009).
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statutory language, we are mindful of the well-settled rule
that statutory interpretation implicates a question of law.
Thus, our scope of review is plenary, and our standard of
review is de novo.
Id. at 842 (citations and some punctuation omitted).
Recently, in a series of cases, this Court has held that mandatory
minimum sentences imposed under certain subsections of 18 Pa.C.S. § 7508
were illegal. See Commonwealth v. Mosley, ___ A.3d ___, 2015 WL
1774216, at *15 (Pa. Super. Apr. 20, 2015) (vacating mandatory minimum
sentence imposed under subsection 7508(a)(3)(ii)); Commonwealth v.
Cardwell, 105 A.3d 748, 755 (Pa. Super. 2014) (concluding trial court erred
by imposing mandatory minimum sentence under subsection 7508(a)(4)(i));
Commonwealth v. Fennell, 105 A.3d 13, 20 (Pa. Super. 2014) (vacating
mandatory minimum sentence imposed per subsection 7508(a)(7)(i));
Commonwealth v. Thompson, 93 A.3d 478, 493 (Pa. Super. 2014)
(holding mandatory minimum sentence under subsection 7508(a)(2)(ii) was
illegal). Instantly, given the Mosley Court vacated a mandatory minimum
sentence imposed under subsection 7508(a)(3)(ii)—the subsection at issue
in the instant case—and the Thompson Court opined on a subsection
structurally identical to the one used to sentence Appellant, we similarly
vacate his sentence and remand for resentencing. See Mosley, ___ A.3d at
___, 2015 WL 1774216, at *15; cf. Thompson, 93 A.3d at 494.
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Appellant lastly contends the trial court erred in finding him ineligible
for a RRRI sentence. Appellant’s Brief at 37. The trial court, in its Pa.R.A.P.
1925(a) opinion, concludes Appellant’s prior conviction for resisting arrest
demonstrated a “history of past violent behavior” rendering him ineligible for
as RRRI sentence under 61 Pa.C.S. § 4503(1). Trial Ct. Op. at 27. The
court observes no Pennsylvania case law exists on the “exact issue.” Id. at
26. However, it suggests the reasoning of the United States Court of
Appeals for the Third Circuit that Pennsylvania’s resisting arrest statute
constitutes “a crime of violence” is persuasive authority. Id. at 26-27 (citing
United States v. Stinson, 592 F.3d 460 (3d Cir. 2010)).
Appellant argues “it can be inferred” the General Assembly did not
intend a prior conviction for resisting arrest to disqualify him from a RRRI
sentence. Appellant’s Brief at 38. In support, he observes the RRRI Act
does not enumerate resisting arrest as a per se disqualifying offense and
relies on the “common law maxim, expressio unius est exclusio alterius.”
Id. (quoting Commonwealth v. Hansley, 994 A.2d 1150, 1157 n.3 (Pa.
Super. 2010)). Appellant further asserts the trial court erred in relying on
federal case law interpreting the federal statutes and sentencing guidelines.
Id. at 37.
The Commonwealth responds the trial court properly found resisting
arrest demonstrates a “‘violent behavior’” under Section 4503(1).
Commonwealth’s Brief at 35. The Commonwealth reasons resisting arrest
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“involves a substantial risk of bodily injury” and suggests resisting arrest is
equivalent to “crimes of violence” under Pennsylvania’s recidivist sentencing
statute.15 Id. at 39-40 (citing 42 Pa.C.S. § 9714(g)). Lastly, the
Commonwealth asserts Appellant’s reliance on the principle of expressio
unius est exclusio alterius is frivolous. Id. at 40. For the reasons that
follow, we conclude a conviction for resisting arrest does not, as a matter of
Pennsylvania law, impute “violent behavior” for the purposes of RRRI
eligibility. Accordingly, Appellant is entitled to partial relief.
As set forth in Hansley: “The issue in this appeal involves statutory
construction, which is a question of law; thus, our review is plenary. In
interpreting statutes, we are guided by the Statutory Construction Act, 1
Pa.C.S. §§ 1501–1991, as well as our decisional law.”16 Id. at 1185
(citation omitted); Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 953 (Pa.
Super. 2011) (per curiam), aff’d, 106 A.3d 656 (Pa. 2014).
15
Relatedly, the Commonwealth argues because resisting arrest
demonstrates “violent behavior” under Section 4503(1), Appellant’s pending
charges of resisting arrest would also disqualify him from eligibility under
Section 4503(5). Commonwealth’s Brief at 41.
16
Moreover, although RRRI eligibility falls in the hazy area between “non-
waivable illegal sentencing matter and waivable legal questions,” this Court
has previously considered the failure to impose a RRRI sentence as an illegal
sentencing matter issue. See Commonwealth v. Tobin, 89 A.3d 663,
669-70 (Pa. Super. 2014); Commonwealth v. Robinson, 7 A.3d 868, 871
(Pa. Super. 2010). Thus, the failure to impose a RRRI sentence “is subject
to sua sponte correction[,]” and our standard and scope of review is de novo
and plenary. Tobin, 89 A.2d at 669-70; Commonwealth v. Barbaro, 94
A.3d 389, 391 (Pa. Super. 2014).
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When considering statutory language, “[w]ords and
phrases shall be construed according to rules of grammar
and according to their common and approved usage.” If
the words of a statute are clear and unambiguous, we
should not look beyond the plain meaning of the statutory
language “under the pretext of pursuing its spirit.”
Accordingly, only when the words of a statute are
ambiguous should a reviewing court seek to ascertain the
intent of the General Assembly through consideration of
the various factors found in Section 1921(c).
Commonwealth v. Chester, 101 A.3d 56, 62-63 (Pa. 2014) (ciations
omitted).
Section 4503 of the RRRI Act defines “eligible offender” in relevant
part as follows:
A defendant or inmate convicted of a criminal offense who
will be committed to the custody of the department and
who meets all of the following eligibility requirements:
(1) Does not demonstrate a history of present or
past violent behavior.
* * *
(3) Has not been found guilty of or previously
convicted of or adjudicated delinquent for or an attempt
or conspiracy to commit a personal injury crime as
defined under section 103 of the act of November 24,
1998 (P. L. 882, No. 111),[ ] known as the Crime
Victims Act, except for an offense under 18 Pa.C.S. §
2701 (relating to simple assault) when the offense is a
misdemeanor of the third degree, or an equivalent
offense . . . .
* * *
(5) Is not awaiting trial or sentencing for additional
criminal charges, if a conviction or sentence on the
additional charges would cause the defendant to
become ineligible under this definition.
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61 Pa.C.S. § 4503(1), (3), (5). As referenced in Section 4503(3), a
“personal injury crime” includes “[a]n act, attempt or threat to commit an
act that would constitute a misdemeanor or felony under . . . 18 Pa.C.S. Ch.
27 (relating to assault).”17 See 18 P.S. § 11.103.
In Chester, the Pennsylvania Supreme Court resolved whether a
conviction for first-degree burglary18 demonstrates “violent behavior” under
17
Other “personal injury crimes” include offenses under Chapters 25
(homicide), 29 (kidnapping), 31 (sexual offenses), 37 (robbery), and 49
Subchapter B (victim and witness intimidation) of the Crimes Code.
Additionally, 18 Pa.C.S. § 3301 (arson) and several provisions relating to the
operation of a watercraft or motor vehicle constitute “personal injury
crimes.” 18 P.S. § 11.103.
18
The defendant in Chester was charged under the following version of the
burglary statute:
(a) Offense defined.—A person is guilty of burglary if
he enters a building or occupied structure, or separately
secured or occupied portion thereof, with intent to commit
a crime therein, unless the premises are at the time open
to the public or the actor is licensed or privileged to enter.
* * *
(c) Grading.—
(1) Except as provided in paragraph (2), burglary is
a felony of the first degree.
(2) If the building, structure or portion entered is not
adapted for overnight accommodation and if no
individual is present at the time of entry, burglary is a
felony of the second degree.
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Section 4503(1) as a matter of law.19 Chester, 101 A.3d at 57. The
Chester Court initially observed that “the RRRI Act does not define what
constitutes a ‘history of present or past violent behavior.’” Id. at 58. The
Court, however, noted Section 4503(2)-(6) enumerates crimes “that render
an offender ineligible to receive a reduced minimum sentence . . . .” Id. at
63.20 Although burglary is not included as a per se disqualifying crime, the
Court construed “Section 4503(1) as a broad, ‘catchall’ provision” that
covered “violent behaviors not otherwise identified in the RRRI Act’s
definition of ‘eligible offender.’” Id.
The Chester Court held first-degree burglary convictions render a
defendant ineligible to receive an RRRI-reduced minimum sentence under
Section 4503(1). Id. at 65. The Court reviewed the treatment of the
Chester, 101 A.3d at 58 n.1 (quoting 18 Pa.C.S. § 3502(a), (c)(1)-(2)
(1990)).
As noted by the Chester Court, this Court previously held that
second-degree burglary did not constitute “violent behavior” under 61
Pa.C.S. § 4503(1) because “illegal entry into an unoccupied structure, does
not involve the risk of violence or injury to another.” Id. at 59 (discussing
Commonwealth v. Gonzalez, 10 A.3d 1260 (Pa. Super. 2010)). The
Chester Court did not address whether second-degree burglary constitutes
“violent behavior” under the RRRI Act. Id. at 60 n.7.
19
Neither the parties nor the trial court had the benefit of Chester, which
was decided while this appeal was pending.
20
The Chester Court noted the per se exclusions include “offenses involving
deadly weapons in Section 4502(2); personal injury crimes enumerated
under Section 103 of the Crime Victims Act in Section 4503(3); certain
sexual offenses in Section 4503(4); and specific drug offenses in Section
4503(6).” Chester, 101 A.3d at 60-61 (footnote omitted).
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offense at law, as well as the structure and language of the burglary statute.
See id. at 64-65. Specifically, the Court reasoned that “it is well established
within our case law that ‘[b]urglary is a crime of violence as a matter of
law[.]’” Id. at 64. It observed, “burglary has been treated as a crime of
violence dating back to the common law of England, which . . . punished
burglars with death ‘[b]ecause of the great public policy involved in shielding
the citizenry from being attacked in their homes and in preserving domestic
tranquility.” Id. at 64. Tracing the treatment of burglary at law, the Court
noted the following. “[A]ll burglaries are crimes of violence for the purposes
of the significant history of violent felony convictions aggravating
circumstance for capital sentence.” Id. (discussing 42 Pa.C.S. §
9711(d)(9)). Moreover, first-degree burglary is expressly listed as a crime
of violence under Pennsylvania’s recidivist sentencing statute, as well as a
disqualifying offense for boot camp. Id. (discussing 42 Pa.C.S. § 9714(g)
and 61 Pa.C.S. § 3903).
The Chester Court further reviewed the text of the burglary statute
and discerned a distinction between first- and second-degree offenses, “as
first-degree burglary contemplates the potential for confrontation, whereas
second-degree burglary does not.” Id. The Court emphasized a conviction
for first-degree burglary imputed a risk of confrontation and violence,
because the structure invaded was either adapted for overnight use or an
individual was present at the time of entry. Id. at 65.
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Of note, the Chester Court, in holding that Section 4503(1)
encompasses all “‘violent behavior’ in addition to the enumerated crimes
contained in Section 4503(2)-(6)[,]” specifically rejected the defendant’s
suggestion to apply the maxim of expressio unius est exclusio alterius. Id.
at 63. Furthermore, the Court dismissed the defendant’s argument that his
prior burglaries did not involve violent behavior, concluding: “it is an
offender’s non-privileged entry, which ‘invit[es] dangerous resistance’ and,
thus, the possibility of the use of deadly force against either the offender or
the victim, that renders burglary a violent crime, not the behavior that is
actually exhibited during the burglary.” Id. (citation omitted).
Mindful of the guidance in Chester, we consider whether a prior
conviction for resisting arrest21 falls within the meaning of “violent behavior”
under Section 4503(1). Under the common law, obstruction of the
execution of lawful process was an offense against public justice and
authorized the officer to use force to ensure compliance without fear of civil
liability. See People v. Nash, 1 Idaho 206, 211-12 (1868);22 4 William
21
As noted below, resisting arrest occurs when “[a] person . . . with the
intent of preventing a public servant from effecting a lawful arrest . . .
creates a substantial risk of bodily injury to the public servant or anyone
else, or employs means justifying or requiring substantial force to overcome
the resistance.” 18 Pa.C.S. § 5104. The offense is graded as a
misdemeanor of the second degree.
22
The Nash Court stated resisting arrest
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Blackstone, Commentaries *129, *179. Further, the common law
envisioned that resistance to lawful process established malice for murder if
the resistance resulted in the officer’s death. Id.; 4 Blackstone *200-01.
Plainly, the traditional offense of obstruction protects police officers.
At the same time, criminalizing resistance channels an individual’s behavior
toward compliance with an officer’s commands and ensures the orderly
administration of law. Cf. Commonwealth v. Williams, 496 A.2d 31, 43,
50 (Pa. Super. 1985) (en banc) (suggesting crime of assault protects person
and resisting arrest protects “time-tested yet fragile social balance whereby
our elected representatives provide laws for the good of society, and public
officers to execute and enforce them, and under which respect and
is an offense at common law . . . . Blackstone says:
“Obstructing lawful process is at all times an offense of a
very high and presumptuous nature, but more particularly
so when it is an obstruction of an arrest upon criminal
process. And in civil cases resistance will justify an officer
in proceeding to the last extremity. So that in all cases,
civil or criminal, when persons having authority to arrest or
imprison are resisted in so doing while using the proper
means for that purpose, they may repel force with force,
and need not give back.” Officers of justice while in the
execution of their offices are under the peculiar protection
of the law, and killing them whilst so doing is murder.
Note, also, sheriffs, constables, watchman, etc., while in
the due execution of their duties, are under the peculiar
protection of the law—a protection founded in wisdom and
equity—for without it the public tranquillity can not be
maintained nor private property secured; nor, in the
ordinary course of things, will offenders of any kind be
amenable to justice. . . .
Nash, 1 Idaho at 211-12 (citations omitted).
- 21 -
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obedience shown to officers discharging their lawful duties are as essential
to the orderly administration of justice as the laws themselves.”). As
suggested in Williams, however, the principal “injury” attendant resisting
arrest is the “administration of law,” a view reflected in the continuing
requirement that the underlying arrest be lawful to sustain a resisting arrest
conviction. Cf. id.; see generally Commonwealth v. Biagini, 655 A.2d
492, 497-98 (Pa. 1995) (holding conviction for resisting arrest requires
underlying arrest be lawful, but unlawful nature of arrest did not preclude
conviction for aggravated assault of officer). But see Commonwealth v.
Jackson, 924 A.2d 618, 621 (Pa. 2007) (upholding resisting arrest
conviction where initial attempt to arrest was unlawful, but probable cause
arose to arrest defendant for other crimes committed while resisting arrest).
As to the treatment of the offense at law, our review reveals no special
consideration given to a conviction for resisting arrest under Pennsylvania
statutes. Resisting arrest is not expressly listed as a “crime of violence” for
recidivist sentencing purpose,23 see 42 Pa.C.S. § 9714(g), or in any other
statute. Nor is it an enumerated crime or aggravating factor in a sentencing
23
We address the Commonwealth’s argument that resisting arrest is an
equivalent offense under Section 9714(g) below.
- 22 -
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or rehabilitative statute.24 Indeed, it does not per se disqualify an individual
from possession of a firearm.25 See 18 Pa.C.S. § 6105(b).
The legislative history surrounding the crime of resisting arrest
supports a policy distinction between the protection of the officer and the
orderly administration of justice. Section 4313 of the former Penal Code,
enacted in 1939, and as amended in 1963, contained an offense entitled
“Obstructing an Officer in the Execution of Process or in the Performance of
His Duties.” The statute provided:
Whoever knowingly, wilfully and forcibly obstructs, resists
or opposes any officer or other person duly authorized, in
serving or attempting to serve or execute any legal
process or order, or in making a lawful arrest without
warrant, or assaults or beats any officer or person, duly
authorized, in serving or executing any such legal process
or order or for and because of having served or executed
the same; or in making a lawful arrest without warrant; or
rescues another in legal custody; or whoever being
required by any officer, neglects or refuses to assist him in
the execution of his office in any criminal case, or in
preservation of the peace, or in apprehending and securing
any person for a breach of the peace, is guilty of a
misdemeanor, and on conviction, shall be sentenced to
24
For example, the Pennsylvania Sentencing Guidelines assigns resisting
arrest an offense gravity score of two. 204 Pa. Code § 303.15. General
obstruction of the administration of law under 18 Pa.C.S. § 5101 carries an
offense gravity score of three. Id.
25
18 Pa.C.S. § 6105(b) lists disqualifying offenses prohibiting a person from
possession of a firearm, and includes all burglaries, as well as several
potential misdemeanor offenses, such as 18 Pa.C.S. § 5121 (escape) and 18
Pa.C.S. § 5122 (weapons or implements for escape).
- 23 -
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imprisonment not exceeding one year, or to pay a fine not
exceeding five hundred dollars ($500), or both.[26]
Commonwealth v. Anderjack, 413 A.2d 693, 696 n.5 (Pa. Super. 1979)
(quoting 18 P.S. § 4314 (1963)). In 1963, the General Assembly created a
separate felony offense of aggravated assault and battery upon a police
officer, which carried a five-year maximum sentence. See 18 P.S. § 4314.1
(1963).
Thus, the General Assembly traditionally distinguished misdemeanor
resistance and/or assault and battery of an officer, each punishable by one
year’s imprisonment, from assault and battery punishable by three years’
imprisonment, as well as felony aggravated assault of an officer punishable
up to five years. See 18 P.S. §§ 4314, 4314.1; Commonwealth v.
Nelson, 305 A.2d 369, 370-71 (Pa. 1973) (concluding, under former
common-law doctrine, that conviction for assault and battery in resisting
arrest under Section 4314 merged into assault and battery); Williams, 496
A.2d at 43 (aggravated assault of police officer and resisting arrest did not
merge under former principal injury test).
In 1972, the Commonwealth adopted the Crimes Code based upon the
Model Penal Code. The Crimes Codes established “offenses involving danger
26
A substantially similar provision existed since at least 1860. See Act 31
March, 1860, P.L. 386, § 8; Commonwealth v. Sadowski, 80 Pa. Super.
496 (1922) (noting that obstruction criminalized failure to assist an officer
pursuing suspect and “it would be a strange legal anomaly” to convict citizen
obeying officer’s order to assist with assault and battery of suspect).
- 24 -
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to the persons” in Article B, and “assaults” under Chapter 27, as well as
“offenses against Public Administration” in Article E, and crimes obstructing
governmental operations in Chapter 51. In addition to the general Chapter
27 offenses protecting the safety and well-being of any person, the former
offenses of assault and battery upon a police officer in 18 P.S. § 4314 and
aggravated assault and battery upon a police officer in 18 P.S. § 4314.1
were incorporated into Chapter 27. See 18 Pa.C.S. § 2702(a)(2), (3), (6) &
1972 Official Cmt. Currently, there are several provisions that specifically
protect police officers. See 18 Pa.C.S. §§ 2702(a)(2), (3), (6), (7), 2702.1.
Those provisions continue the common law tradition of affording special
protections to police by, for example, considering “simple” assaults upon
police officers as felony aggravated assault. See 18 Pa.C.S. §§ 2701,
2702(a)(6); Commonwealth v. Wertelet, 696 A.2d 206, 210 n.6 (Pa.
Super. 1997); accord Nash, 1 Idaho at 212.
Under Chapter 51, the General Assembly broadened the scope of
criminal liability for “obstructing administration of law” and distinguished
resisting arrest. Compare 18 Pa.C.S. §§ 5101, 5104; with 18 P.S. § 4314;
see also 18 Pa.C.S. § 5101, 1972 Official Cmt (noting there was no similar
provision to obstruction offense in Section 5101 in existing law).
Obstruction constitutes a second-degree misdemeanor for the use of “force,
violence, physical interference or obstacle, breach of official duty, or any
other unlawful act” with the intent to obstruct, impair, or pervert the
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administration of law. 18 Pa.C.S. § 5101. The obstruction statute excludes
“flight [or] refusal to submit to arrest.” 18 Pa.C.S. § 5101. The intent of
the Model Penal Code drafters was “to relegate such conduct to the . . .
offense of resisting arrest.” Model Penal Code § 242.1, Explanatory Note.
We now turn to the resisting arrest statute at issue in this appeal.
Section 5104 of the Crimes Code provides:
A person commits a misdemeanor of the second degree if,
with the intent of preventing a public servant from
effecting a lawful arrest or discharging any other duty, the
person creates a substantial risk of bodily injury to the
public servant or anyone else, or employs means justifying
or requiring substantial force to overcome the resistance.
18 Pa.C.S. § 5104 (emphasis added). Notably, resisting arrest is a second-
degree misdemeanor, the same grade as obstruction. Moreover, resisting
arrest contains alternative bases for liability, i.e., acts creating a substantial
risk of injury or requiring substantial force to overcome. See Thompson,
922 A.2d at 928. The use of the term “substantial” is consistent with the
1972 Official Comment that “this section changes existing law somewhat by
not extending to minor scuffling which occasionally takes place during an
arrest.” 18 Pa.C.S. § 5104, 1972 Official Comment. Similarly, the Model
Penal Code drafters indicate their suggested “language exempts from liability
nonviolent refusal to submit to arrest and such minor acts of resistance as
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running from a policeman or trying to shake free of his grasp.” 27 Model
Penal Code § 242.1, Explanatory Note for Sections 242.1-242.8.
The creation of a substantial risk of bodily injury to a public servant
may fall within the ambit of “violent behavior”28 under a common
understanding of that phrase, under the analytical framework set forth in
Chester. See Chester, 101 A.3d at 64-65 (noting first-degree burglary
viewed as a crime of violence because offender’s “non-privileged entry . . .
contemplates the potential for confrontation” and “‘invit[es] dangerous
resistance’ and thus the possibility of the use of deadly force” (citations
omitted)). However, this does not end our inquiry, because “passive
resistance” requiring substantial force to overcome constitutes an
independent basis for resisting arrest. See Thompson, 922 A.2d at 928.
Thus, we consider further the nature of liability under the second element of
the resisting arrest statute.
In Commonwealth v. Clark, 761 A.2d 190 (Pa. Super. 2000), we
sustained a conviction for resisting arrest based on the following:
27
The drafters explained, “The policy judgment underlying this curtailment
of coverage is that authorizing criminal punishment for every trivial act of
resistance would invite abusive prosecution.” Model Penal Code § 242.1,
Explanatory Note.
28
We note Webster’s defines “violent” as: “1: characterized by extreme
force : marked by abnormally sudden physical activity and intensity 2:
furious or vehement to the point of being improper, unjust, or illegal . . . 4:
produced or effected by force . . . .” Webster’s Third New International
Dictionary, Unabridged 2554 (1986).
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The Carlisle Police responded to a fight in front of the
Carlisle Tavern on South Hanover Street, just south of the
Courthouse. The defendant was first observed in a
crosswalk. He then approached Officer Kevin Roland at
which time he was screaming profanity. When Officer
Roland attempted to arrest the defendant for disorderly
conduct, the defendant avoided arrest by walking
backwards and walking in circles. From time to time, the
defendant would assume a fighting stance. The officer
then sprayed the defendant with pepper spray in an effort
to subdue him. The defendant then began running down
South Hanover Street in the travel lanes of the roadway.
The officer ran after the defendant until Mr. Clark slipped
on the wet roadway and fell down. The officer then turned
the defendant over onto his stomach and handcuffed him.
Clark, 761 A.2d at 191. In light of that record, the Clark Court concluded,
“substantial force was thus required to overcome [the defendant’s]
resistance to the arrest.” Id. at 193-94.
In Thompson, the defendant and her husband were involved in an
argument with employees and another driver inside a parking garage.
Thompson, 922 A.2d at 927. Two officers on horseback arrived and the
following occurred
Officer Deborah Ewing heard profanities as she approached
the garage. Once inside, she observed [the defendant’s
unoccupied] vehicle by the booth. [The defendant] was
standing behind the car, and [the defendant’s husband]
was shouting at the driver of the other vehicle. When
Officer Ewing attempted to get [the defendant’s husband]
attention by calling and whistling, he began flailing his
arms and hitting the officer. While trying to control her
horse, Officer Ewing informed [the defendant’s husband]
that he was under arrest . . . . [The defendant]
approached Officer Ewing, yelling and waving her hands in
an attempt to scare the horse. [The defendant] hit the
horse’s nose, causing the animal to rear up.
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Officer Canfield then arrived on the scene, dismounted
his horse to diffuse the activity among [the defendant],
Officer Ewing, and Officer Ewing’s horse. As the couple
attempted to re-enter their vehicle, Officer Canfield yelled,
pushed them against the car, threw them to the ground,
and a struggle ensued. [The defendant] and her husband
interlocked their arms and legs and refused to respond to
Officer Canfield’s verbal commands to release their hands.
The officers attempted to pry the couple apart to handcuff
and place them in custody. After struggling with the
officers for a few minutes, [the defendant] was eventually
disengaged from Mr. Thompson and handcuffed after
pepper spray was deployed.
Id. The defendant was convicted of resisting arrest, disorderly conduct, and
taunting a police animal. Id.
On appeal, the defendant in Thompson challenged her resisting arrest
conviction and argued “her ‘passive’ resistance to the officers’ attempts to
place her in custody belie[d] any intent to strike or use force against them.”
Id. at 928. This Court rejected that argument, relying in part upon Clark.
Specifically, we observed, “Officer Ewing . . . struggled to pull [the
defendant] apart from her husband with whom she interlocked her arms and
legs . . . and held her arms tightly beneath him” despite the officers’
commands to disengage from her husband. Id. We further noted “Officer
Canfield testified that his attempts to restrain the couple to place them
under arrest left him ‘exhausted.’” Id. (citation omitted). Thus, the
Thompson Court concluded the defendant’s “use of passive resistance
requiring substantial force to overcome provided sufficient evidence for
upholding the resisting arrest conviction.” Id.
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This Court’s unpublished memoranda, while not precedential, illustrate
the grounds for liability under the substantial-force-required element. See,
e.g., Commonwealth v. Royster, 181 WDA 2015 (unpublished
memorandum at 7) (Pa. Super. June 3, 2015) (concluding substantial force
required to overcome resistance, when, during lawful arrest for disorderly
conduct on bus, defendant grabbed a hand-bar, yelled and struggled, and
required “three police ‘a considerable amount of time’ to secure [the
defendant’s] hands” (emphasis in original)); Commonwealth v. Patrick,
1265 WDA 2014 (unpublished memorandum at 8) (Pa. Super. June 1, 2015)
(concluding substantial force required to overcome defendant when after
officer tackled defendant, defendant refused to show his hands and submit
to being handcuffed; officer believed defendant was armed with a hammer;
another officer was required to handcuff defendant); Commonwealth v.
Wright, 2935 EDA 2013 (unpublished memorandum at 10) (Pa. Super. July
1, 2014) (concluding after defendant fled, “the fact that it took two police
officer 10 to 15 seconds to place handcuffs on [defendant] meets the
statutory language of resistance behavior that took substantial force to
surmount”).
We are mindful that Chester precludes this Court from engaging in a
case-by-case analysis of the facts to determine whether a per se
disqualifying crime imputes violent behavior. See Chester, 101 A.3d at 65.
Nevertheless, our decisions in Clark and Thompson, as well as our
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J. A32033/14
continued application of the statute, reveal a resisting arrest conviction may
be predicated upon the “substantial” use of force to subdue resistance
without an express consideration of a substantial risk of bodily injury.
Because the text of the resisting arrest statute does not distinguish between
the alternative elements for liability, there is ambiguity as to whether a
resisting arrest conviction involves “violent behavior” as a matter of law. Cf.
id. at 64-65. Given this ambiguity, as well as the historical treatment of the
crime, a conviction for resisting arrest is not amenable to a per se approach
when determining ineligibility for “violent behavior” under the RRRI.
We are further mindful of the sound policies discussed by our courts
and the federal courts that the essence of resisting arrest is the creation of a
substantial risk of bodily injury and thus constitutes a “crime of violence.”
See Stinson, 592 F.3d at 466; Commonwealth v. Miller, 475 A.2d 145,
146 (Pa. Super. 1984); see also United States v. Jones, 740 F.3d 127,
137 (3d Cir. 2014) (holding misdemeanor conviction for fleeing and eluding
under 75 Pa.C.S. § 3733 constituted categorical “crime of violence” under
federal sentencing guidelines). However, given the text of Section 5104,
and our applications of the statute, it is apparent our courts strictly construe
and apply the plain language of the statute. Cf. 1 Pa.C.S. § 1921(b) (“When
the words of a statute are clear and free from all ambiguity, the letter of it is
not to be disregarded under the pretext of pursuing its spirit.”).
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Thus, we turn to the Commonwealth’s argument that even if resisting
arrest is not enumerated as disqualifying offense, it is equivalent to other
“crimes of violence.” Commonwealth’s Brief at 39-40 (citing 42 Pa.C.S. §
9714(g)). Section 9714(g) enumerates several per se crimes of violence,
including, “aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) or (2) .
. . assault of law enforcement officer as defined in 18 Pa.C.S. § 2702.1 . . .
or an equivalent crime under the laws of this Commonwealth . . . .” 42
Pa.C.S. § 9714(g). However, the Commonwealth relies solely on the policies
underlying resisting arrest and fails to acknowledge the significant
differences between resisting arrest and assaulting a police officer, including
whether injury was caused or attempted, the severity of the injury caused or
intended, and the mens rea of the offenses.29 Thus, we discern no basis to
conclude that resisting arrest is an equivalent “crime of violence” under
Section 9714(g).
Lastly, we consider the trial court’s reliance upon federal decisions
holding resisting arrest is a “crime of violence.” Under the federal
sentencing guidelines, a defendant is considered a “career offender” if in
relevant part he has “at least two prior felony convictions of . . . a crime of
29
Compare 18 Pa.C.S. § 5104 (requiring intent to prevent lawful arrest and
either creating substantial risk of bodily injury or requiring substantial force
to overcome), with 18 Pa.C.S. § 2702(a)(1) (requiring attempt to cause or
causing serious bodily injury to another recklessly under circumstances
manifesting extreme indifference), (a)(2) (requiring same for officers) and
18 Pa.C.S. § 2702.1 (requiring, inter alia, attempt to cause or knowingly
causing bodily injury to officer by discharging firearm).
- 32 -
J. A32033/14
violence[.]” U.S.S.G. § 4B1.1. The guidelines define a “crime of violence”
as “any offense under federal or state law, punishable by a imprisonment
exceeding one year, that . . . otherwise involves conduct that presents a
serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2).
In Stinson, the Third Circuit held that resisting arrest was a
categorical “crime of violence” for sentencing purposes because “it involves
conduct that presents a serious potential risk of physical injury to another.”
Stinson, 592 F.3d at 466. The Court reasoned:
Although the language of Pennsylvania’s resisting arrest
statute “does not require the aggressive use of force such
as striking or kicking of the officer,” we have found no
decision under Pennsylvania law that affirmed a conviction
for resisting arrest based on a defendant’s inaction or
simply “lying down” or “going limp.” Counsel arguing
before us on this appeal could cite to none in response to
our questions. In fact, there are several cases in which
Pennsylvania courts have recognized that resisting arrest
does not extend to “minor scuffle[s] incident to an arrest.”
It is only when a defendant who was “struggling and
pulling, trying to get away from [the arresting officer who
was physically restraining him],” that he was convicted of
resisting arrest, and such cases are rare.
Id. (citations omitted). The Stinson Court rejected the defendant’s
argument that under Thompson, a Pennsylvania conviction could reflect
“active” or “passive” resistance, noting that the defendant in Thompson
resisted actively by, inter alia, startling and striking a police horse.
We need not quarrel with the Third Circuit’s interpretation of the
Pennsylvania statute as that Court applied an express definition of a “crime
- 33 -
J. A32033/14
of violence,” as well as case law on the scope of that definition. 30 Moreover,
the purposes of the RRRI statute, which concerns a defendant’s eligibility for
a rehabilitative program, and the federal sentencing guidelines scoring of
prior convictions are sufficiently distinct such that complete congruity
31
between the definitions of “violent behavior” and a “crime of violence” is
unnecessary. Compare 61 Pa.C.S. § 4503(3) and 18 P.S. § 11.103
(rendering defendant ineligible for RRRI for prior conviction for all Chapter
27 offenses, including simple assault) with Stinson, 592 F.3d at 463
(noting record failed to show basis for Pennsylvania simple assault conviction
and declining to address whether that conviction constituted crime of
violence under federal sentencing guidelines). It suffices for the purposes of
this appeal to conclude that we do not find federal case law persuasive
authority with respect to Pennsylvania’s RRRI statute.
In sum, we conclude the fact of a prior conviction for resisting arrest
does not per se demonstrate “violent behavior” when determining RRRI
eligibility. See 61 Pa.C.S. § 4503(1). It follows that resisting arrest is not a
30
See Stinson, 592 F.3d at 462 (discussing categorical and modified
categorical approaches to determining whether elements of statute meet the
definition of “crime of violence.”).
31
The United States Supreme Court, in Johnson v. United States, 576
U.S. ___, 2015 WL 2473450 (June 26, 2015), recently held a substantial
similar definition of a “violent felony” as “conduct that presents a serious
potential risk of physical injury to another” was unconstitutionally vague.
Id. at ___ (striking 18 U.S.C. § 924(e)(2)(B), known as “residual” clause of
Armed Career Criminal Act).
- 34 -
J. A32033/14
pending “additional charge[ that] would cause the defendant to become
ineligible” for a RRRI minimum sentence. See 61 Pa.C.S. § 4503(5). As
the Commonwealth’s sole objection to Appellant’s RRRI eligibility was that
resisting arrest was a per se crime of violence, see N.T. Sentencing, at 11-
14, we are constrained to reverse the trial court’s determination that
Appellant was RRRI ineligible.
Judgment of sentence vacated. Case remanded for resentencing
consistent with this memorandum. Jurisdiction relinquished.
Judge Panella joins the memorandum.
Judge Olson files a concurring and dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2015
- 35 -
Circulated 06/30/2015 04:06 PM
·'
COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS
CHESTER COUNTY, PENNSYLVANIA
vs
CRIMINAL ACTION
JEROME GRIER NO. 1348-11
SUPERIOR CT. NO. 1429 EDA 2013
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Nicolas Casenta, Esquire, Attorney for the Commonwealth. ~-("')
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Trevor Taylor, Esquire, Attorney for Defendant. ::..: rq
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STATEMENT OF THE COURT C;CJ '-' ;#
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Defendant filed a timely appeal on May 15, 2013, following se.ntencia@ on ~_pril 24,
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2013. An appeal having been taken, pursuant to Pa.RAP. 1925(a), the fofiawing
statement is submitted.
The criminal charges in this case arose as a result of a lengthy multi-agency police
investigation of the Chester County High Intensity Drug Trafficking Area Group. The
investigation included Wiretap Authorization Orders issued by the Superior Court and the
compilation of thousands of intercepted communications regarding the purchasing, selling
and transferring of drugs and money. This investigation resulted in Defendant's arrest as
well as the arrest of fifteen other defendants who were involved in this drug trafficking
organization.
Pursuant to the Amended Information, filed September 7, 2012, Defendant was
charged with 11 counts of possession with intent to deliver, in violation of 35 Pa.C.S.A. §
780-113(A)(30); 1 count of criminal conspiracy, in violation of 18 Pa.C.S.A. § 903(c); 7
)/Jrtfftl/f:J counts of dealing in proceeds of unlawful activities, in violation of 18 Pa.C.S.A. §
?1ft!. rpt 5111 (a}( 1); 1 count of corrupt organizations, in violation of 18 Pa. C. S .A. § 911 (b )(3 )(4);
/:?;·/7 ~/ 5 :
lj~' /'- . "
'h»i-.
4
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Circulated 06/30/2015 04:06 PM
15 counts of criminal use of a communications facility, in violation of 18 Pa.C.S.A. §
7512(a); 11 counts of possession of a controlled substance, in violation of 35 Pa.C.S.A. §
780-113(A)(16); and 45 counts of criminal solicitation, in violation of 18 Pa.C.S.A. § 902.
In response to Defendant's Habeas Corpus Petition, an Order was entered on
September 21, 2012, dismissing the following charges: 2 counts of possession with
intent to deliver, 1 count of dealing in proceeds of unlawful activity, 1 count of corrupt
organizations, 2 counts of possession of a controlled substance and 2 counts of criminal
solicitation. A jury trial was conducted from January 7, 2013 through January 15, 2013.
Defendant was found guilty of the following charges on January 15, 2013: 9 counts of
possession with intent to deliver; 9 counts of possession of a controlled substance; 42
counts of criminal solicitation; 15 counts of criminal use of a communications facility; 1
count of criminal conspiracy; and 6 counts of dealing in proceeds of unlawful activities.
Defendant was sentenced on April 24, 2013 to an aggregate term of imprisonment of
14.75 to 29.5 years.
Defendant did not file a Post-Sentence Motion but did file a Notice of Appeal on
May 15, 2013. On that same date this court entered an order directing Defendant's
counsel to file a concise statement of errors complained of on appeal no later than
twenty-one (21) days after the entry of the order. On May 21, 2013, Defendant filed a
Request for Extension of Time to file the statement due to the need to obtain the
transcripts. An Order was entered on May 22, 2013 granting Defendant's request for an
extension and ordering said statement to be filed no later than June 19, 2013.
Defendant filed his concise statement on June 19, 2013 and filed a supplemental
statement on June 20, 2013.
2
Circulated 06/30/2015 04:06 PM
Defendant alleges ten (10) errors complained of on appeal in his June 19, 2013
statement and one (1) additional error in his June 20, 2013 supplemental statement. This
court will address each issue raised, but will group the issues by subject matter in the
interest of clarity.
Superior Court 's Wiretap Authorizing Orders:
Defendant's first issue raised on appeal is that "[t]he Court erred by admitting the
Appellant's conversations at trial which were not authorized for interception under the
Authorizing Orders of the Superior Court because, the Appellant was a known party and
his name was absent from many of the orders." Defendant's second issue raised on
appeal is that "[t]he Court erred by allowing evidence related to charges which were not
listed in the Authorizing Orders of the Superior Court." These issues were the subject of
an Amended Motion to Suppress that was filed on April 3, 2012. After a hearing and a
review of the evidence and current state of the law, this court filed an Opinion and Order
on October 11, 2012. In accordance with Pa.R.A.P. 1925(a), this court sets forth that the
reasons for the denial of Defendant's request for suppression based on his first two
issues on appeal are found in that Opinion and Order, which are attached hereto and
made a part hereof.
Drug Experts:
Defendant's third issue raised on appeal is that "[t]he Court erred in allowing the
drug experts involved in this case to speculate about the meaning of numerous phrases
used in the Appellant's conversations. The definitions provided by the drug experts
were not necessary and were unfairly prejudicial to the Appellant." This court
disagrees.
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As discussed above, this case included the compilation of thousands of
intercepted communications regarding the purchasing, selling and transferring of drugs
and money. Within these communications there were very few times actual references to
drugs, weights or money was used. Rather, other terms were used to covertly
communicate. In addition, observational evidence was presented by the officers, much of
which included video surveillance.
Pennsylvania State Police Trooper Joseph Fanning was found to be an expert in
narcotics trafficking and Special Agent Mark Koss of the Drug Enforcement
Administration was found to be an expert in narcotics trafficking and narcotics trafficking
investigations. (N.T., 1/9/13, p. 59 and N.T., 1/10/13, p. 78). Both experts testified about
how numerous certain terms were used within this drug trafficking organization. For
example, a "snorter" is someone who uses powdered cocaine, "stack" is a thousand
dollars in United States currency and "stepped on" is the adding of adulterant to cocaine.
(N.T., 1/9/13, p. 65).
Pursuant to Pa.RE. 702, "[iJf scientific, technical or other specialized knowledge
beyond that possessed by a layperson will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an expert by knowledge,
skill, experience, training or education may testify thereto in the form of an opinion or
otherwise."
Pennsylvania courts have "determined that in narcotics investigations involving
legally intercepted telephone conversations, expert testimony regarding coded and cryptic
language relating to criminal activity and sales of controlled substances is permissible
under Rule 701." Commonwealth v. Huggins, 68 A.3d 962, 967 (Pa.Super. 2013), citing
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Commonwealth v. Cuevas, 61 A.3d 292 (Pa.Super. 2013); and Commonwealth v. Doyen,
848 A.2d 1007 (Pa.Super. 2004).
It was proper to allow the experts to interpret the terms used within this drug
trafficking organization as interpretation of these terms assisted the jury to understand the
evidence. Many of the conversations would have been confusing or incomprehensible
without the expert testimony. Accordingly, Defendant's issue on appeal is without merit.
Severance:
Defendant's fourth issue raised on appeal is that "[t]he Court erred in denying the
Appellant's Motion for Severance from the other co-defendants." This court disagrees.
Defendant filed a Motion for Severance on October 22, 2012. Defendant argued
that the dismissal of the corrupt organizations charges eliminated "any legal necessity
to try the co-defendants together." He further argued that he would be prejudiced by
the admission of statements and evidence admissible against the co-defendants, but
not admissible against Defendant.
Pa.R.Crim.P. 582(A)(2) provides that "Defendants charged in separate
indictments or informations may be tried together if they are alleged to have
participated in the same act or transaction or in the same series of acts or transactions
constituting an offense or offenses." Pa.R.Crim.P. 583 states as follows: "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."
Appellate review of a trial court's denial of a motion for severance is addressed to the
sound discretion of the trial court and its decision will not be disturbed absent a manifest
abuse of discretion. Commonwealth v. Page, 59 A.3d 1118, 1133 (Pa.Super. 2013),
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citing Commonwealth v. Mollett, 5 A.3d 291, 305 (Pa.Super. 2010).
A defendant bears the burden of proving that he would be prejudiced by a decision
not to sever, and must show real potential for prejudice rather than mere speculation.
Commonwealth v. Rivera, 773 A.2d 131, 137 (Pa. 2001 ), citing Commonwealth v. Uderra,
706 A.2d 334, 339 (Pa. 1998). See also Page, 59 A.3d at 1133, citing Mollett, 5 A.3d at
305, supra. The United States Supreme Court and the Pennsylvania Supreme Court
have both "recognized that joint trials of co-defendants play a crucial role in the criminal
justice system." Commonwealth v. Travers, 768 A.2d 845, 847 (Pa. 2001), citing
Richardson v. Marsh, 481 U.S. 200, 209, 107 S.Ct. 1702, 1708 (1987); Commonwealth v.
Wharton, 607 A.2d 710 (Pa. 1992); Commonwealth v. Jackson, 303 A.2d 924 (Pa. 1973);
and Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954), cert. denied, 348 U.S. 875, 75
S.Ct. 112 (1954).
"Where ... crimes charged grew out of the same acts and much of the same
evidence is necessary or applicable to all defendants, joint rather than separate trials are
to be preferred." Commonwealth v. Childress, 680 A.2d 1184, 1187 (Pa.Super. 1996),
app. denied, 689 A.2d 231 (Pa. 1997). See also Commonwealth v. Lee, 662 A.2d 645,
651 (Pa. 1995), cert. denied, Lee v. Pennsylvania, 517 U.S. 1211, 116 S.Ct. 1831 (1996).
"Joint trials are favored when judicial economy will be served by avoiding the expensive
and time-consuming duplication of evidence ... " Commonwealth v. Birdsong, 24 A.3d
319, 336 (Pa. 2011), citing Commonwealth v. Jones, 668 A.2d 491, 501 (Pa. 1995).
Additionally, "it is well established that 'the law favors a joint trial when criminal
conspiracy is charged."' Commonwealth v. Serrano, 61 A.3d 279, 285 (Pa.Super.
2013), quoting Commonwealth v. Housman, 986 A.2d 822, 835 (Pa. 2009). '"A joint
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trial of co-defendants in an alleged conspiracy is preferred not only in this
Commonwealth, but throughout the United States."' Serrano, 61 A.3d at 285, quoting
Commonwealth v. Colon, 846 A.2d 747, 753 (Pa.Super. 2004).
"'It would impair both the efficiency and the fairness of the criminal justice system
to require ... that prosecutors bring separate proceedings, presenting the same
evidence again and again, requiring victims and witnesses to repeat the inconvenience
(and sometimes trauma) of testifying, and randomly favoring the last tried defendants
who have the advantage of knowing the prosecution's case beforehand."' Serrano, 61
A.3d at 285, quoting Colon, 846 A.2d at 753, quoting Richardson v. Marsh, 481 U.S. at
209, 107 S.Ct. at 1708. "'Joint trials generally serve the interests of justice by avoiding
inconsistent verdicts and enabling more accurate assessment of relative culpability."'
Id.
In determining whether to grant a defendant's request for severance, "the court
must balance the need to minimize the prejudice that may be caused by the consolidation
against the general policy of encouraging judicial economy." Commonwealth v. Presbury,
665 A.2d 825, 828 (Pa.Super. 1995), citing Commonwealth v. Patterson, 546 A.2d 596
(Pa. 1988). See also Commonwealth v. Stocker, 622 A.2d 333, 341 (Pa.Super. 1993).
"A better chance of acquittal from a separate trial is not sufficient cause to warrant
severance." Commonwealth v. Presbury, 665 A.2d at 828, citing Commonwealth v.
Katsafanas, 464 A.2d 1270 (Pa.Super. 1983). "Rather, the defenses presented by the
various defendants must be 'irreconcilable and exclusive' and 'conflict at the core' before
the substantial prejudice burden is met." Commonwealth v. Presbury, 665 A.2d at 828,
citing Commonwealth v. Bennie, 508 A.2d 1211, 1215 (Pa.Super. 1986).
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"[l]t is common in joint trials of multiple defendants that evidence is admitted
solely against one defendant." Commonwealth v. Mccrae, 832 A.2d 1026, 1037 (Pa.
2003), citing Travers, 768 A.2d at 847. "The general rule in such a circumstance is that
an instruction to the jury that it is to consider the evidence only with respect to the
defendant against whom it has been properly introduced is sufficient to remove any
potential spillover prejudice to the defendant against whom the evidence was not
admitted." Mccrae, 832 A.2d at 1037, citing Commonwealth v. Bridges, 757 A.2d 859,
883 (Pa. 2000); and Commonwealth v. Travaglia, 661 A.2d 352, 361 (Pa. 1995).
Applying the above standards to the case at hand, it is clear that this court
properly denied Defendant's request to sever his case from that of his co-defendants.
Defendant and his co-defendants were members of a large drug trafficking organization
that transported drugs into Chester County and sold them to numerous buyers in
Chester County. Defendant's case was originally joined with 13 other co-defendants as
the Commonwealth had filed Rule 582 Notices to join the cases and defendants.1 All
of these co-defendants were identified to law-enforcement officials through the use of
the captured phone calls via the wire-tap, video surveillance and controlled drug
purchases. Thousands of drug pertinent phone conversations were captured and
recorded which expanded the investigation and helped identify more members of the
drug trafficking organization.
Due to the numerous co-defendants the court needed to balance the desire to
promote judicial economy while also promoting manageable trials. Therefore, it was
decided that Defendant would be tried with only two of the co-defendants: Omar
1
The co-defendants were Omar Shelton, Khye Rivas, Philip DiMatteo, Kurtis St.John, Terrence Rokins,
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Shelton and Khye Rivas.2 All three were charged with numerous drug offenses and
conspiracy to commit possession with intent to deliver with the kingpin of this drug
trafficking organization, Mr. DiMatteo. As discussed above, the law favors joint trials
when criminal conspiracy is charged. Therefore, Defendant's argument that the
dismissal of the corrupt organizations charges eliminated "any legal necessity to try the
co-defendants together" is without merit.
This court limited any prejudice to Defendant concerning evidence that was
admissible against the co-defendants but not against Defendant by properly instructing
the jury. First, the court instructed the jury with regard to evidence concerning co-
defendant DiMatteo as follows:
Ladies and gentlemen, I am going to give you a cautionary
instruction before I allow this.
You are about to hear evidence concerning Phillip DiMatteo
and his drug organization. This can be considered only for the
purpose of giving you information, background on Mr. DiMatteo for
the development of the events leading to the present charges
pending against these three individuals, defendants.
The evidence you are about to hear concerning Phillip
DiMatteo can be considered only for the purpose of giving you
information and background on Mr. DiMatteo for the purpose of
development of the events that lead to the present charges on
these three defendants and the specific charges against each of
them.
This DiMatteo information is not to be considered for any
other purpose. The matters that you will hear are not to be
employed by you to form any inferences with respect to these three
defendants in those specific Phil DiMatteo matters about which you
will hear testimony.
You must not consider the specific instances regarding Mr.
Phillip DiMatteo as evidence against any of these three defendants,
Mr.Shelton, Mr. Rivas and Mr. Grier.
Christopher Currey, Jorge Rodriguez, Raemone Carter, Lawrence Brown, Clarence Reid, Kylil London,
Michael Pagan and Jon Nelson.
2
It must be noted that some of the co-defendants had entered guilty pleas prior to that start of this trial
and one of the co-defendants died at Chester County Prison.
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As you know, if you find any of these defendants guilty of
committing any of the crimes for which they are charged, it must be
only because the Commonwealth has demonstrated by evidence
proving beyond a reasonable doubt that the defendant committed
each and every element of the crimes charged in their specific
cases.
So with that cautionary instruction, you may proceed.
(N.T., 1/8/13, pgs. 134-136).
Thereafter, the court gave the following cautionary instruction to the jury
immediately before evidence of the recorded phone conversations was presented:
So another thing I have to tell you is we have two separate
defendants here on trial. They are being tried together, but they
each face independently and separately from each other a series
of charges. You must consider each piece of evidence you are
about to hear only as it relates to the defendant who's involved in
that tape.
If you find something in the tape with one of the defendants
that you think is compelling evidence, you are not to apply it in any
way or let it give any negative inference in any way towards the
other defendant. Each defendant is to be judged by evidence
presented, specifically, against that defendant.
And in terms of the tapes, there is, it will be clear which
defendant is being discussed. And that's the defendant, only
defendant, you can apply that evidence to. Whether you accept
the evidence or whether you reject it, it relates to that person.
Again, if you find either of those defendants guilty of
committing any of the crimes for which he is charged, it must be
because the Commonwealth has demonstrated by evidence
proving beyond a reasonable doubt that that defendant committed
each and every element of each crime charged. Thank you.
(N.T., 1/10/13, pgs. 171-172).
In addition, the court gave the following instructions to the jury in the final charge:
Now, members of the jury, I am going to remind you that
throughout this charge, when I refer to defendant or defendants as
I read the charge, you must apply the instructions separately and
independently to each defendant, Mr. Jerome Grier and Mr. Khye
Rivas. Although evidence has been presented in one trial, each
defendant and his charge must be considered separately and
independently from the other.
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At the outset, when Mr. Kelly was presenting information
about the background of Phillip DiMatteo, the individual on whose
phone the wire was placed, I cautioned you that the background
evidence you heard concerning DiMatteo could be only considered
for the development of the events leading to the present charges.
It was not to be considered for any other purpose.
I am now restating that cautionary and limiting instruction
that still controls. If you find either of these defendants guilty of
committing the crimes for which he is charged, it must be because
the Commonwealth has demonstrated by evidence proving beyond
a reasonable doubt that the defendant committed each and every
element of the crimes charged in these matters.
There is a further rule that restricts use by you of the
evidence offered to show that each defendant made statements
concerning crimes charged against that individual defendant as a
statement made before trial may be considered as evidence only
against the defendant who made that statement. Thus, you may
consider any statements only as evidence against the defendant
who made it. You must not, however, consider the statement as
evidence against the other defendant. You must not use the
statement in any way against him.
(N.T., 1/15/13, pgs. 82-83 and 89-90).
Since jurors are deemed to follow the court's directions, these proper instructions
were sufficient to remove any potential spillover prejudice to the defendant against
whom the evidence was not admitted. Defendant has failed to establish the burden of
prejudice needed to overturn the court's decision to deny his request to sever.
Therefore, this issue on appeal is without merit.
Mistrial:
Defendant's fifth issue raised on appeal is that "[t]he Court erred in denying a
mistrial when the co-defendant Omar Shelton pied guilty following opening arguments.
As the cases were joined, Mr. Shelton's plea and absence from the trial raised an
inference that Mr. Grier was also guilty."
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When a motion for a mistrial is presented to the court, the decision on said motion
is within the sound discretion of the trial court. Commonwealth v. Greer, 895 A.2d 553,
556 (Pa.Super. 2006), quoting Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa.Super.
2003). A mistrial upon motion of one of the parties is required only when an incident is
of such a nature that its unavoidable effect is to deprive a defendant of a fair and
impartial trial. kl "It is within the trial court's discretion to determine whether a
defendant was prejudiced by the incident that is the basis of a motion for a mistrial." kl
On appeal, the standard of review is whether the trial court abused that discretion
when deciding whether to deny the mistrial. kl "An abuse of discretion is more than an
error in judgment. On appeal, the trial court will not be found to have abused its
discretion unless the record discloses that the judgment exercised by the trial court was
manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will." kl
This trial started with three co-defendants: Omar Shelton, Khye Rivas and
Defendant. A jury was selected on January 7, 2013. On January 8, 2013, trial
proceedings were delayed because the attorney for Khye Rivas was in an automobile
accident. The jury was informed that someone involved in the case had been in an
accident and that proceedings would be delayed. The jury was not informed of the
identity of the person in the accident. (N.T., 1/8/13, pgs. 4-5 and 51).
Proceedings started with the jury at 12:05. (N.T., 1/8/13, p. 50). The
Commonwealth presented an opening statement. (N.T., 1/8/13, pgs. 52-86).
Thereafter, the jury was released for a lunch recess at 12:56. (N.T., 1/8/13, p. 87).
Upon resumption of the proceedings, but not in the presence of the jury, Omar
Shelton's attorney informed the court that his client and the Commonwealth reached a
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negotiated guilty plea, subject to the court's approval. (N.T., 1/8/13, pgs. 89 and 93).
The court and counsel discussed the best way to proceed since the jury had
already been in service for two days and the trial had just reached the stage of defense
opening arguments. Therefore, it was agreed that the trial would not be further delayed
by taking the guilty plea at that point. The plea would be taken after the conclusion of
the jury proceedings that day, after the jury was released. So as to prevent any
confusion or taint of the jury with an opening by Omar Shelton's attorney, he agreed to
state that he would defer his opening statement. (N.T., 1/8/13, pgs 89-97).
The jury was reassembled and counsel for Defendant and Khye Rivas
proceeded with their opening arguments.3 (N.T., 1/8/13, pgs. 97-105). Thereafter, the
court asked Mr. Shelton's attorney, "Mr. Clark, do you wish to proceed now, or do you
wish to reserve your time?" (N.T., 1/8/13, p. 105). He responded, "Judge, I am going to
reserve my time. Thank you." J.sL. The Commonwealth called its first witness and
questioned him until about 4:30. The witness was excused to be recalled on direct the
following day. (N.T., 1/8/13, p. 167). The jury was excused at 4:36 p.m. (N.T., 1/8/13,
p. 169). Thereafter, Omar Shelton entered a negotiated guilty plea.
The following morning, defense counsel presented an oral motion for mistrial.
The following exchange took place with counsel and the court:
We're now starting Day 3 of our trial. And counsel indicated
to me in the last minutes of last evening that there would be a
motion forthcoming.
Counsel.
MS. JONES: Yes, your Honor.
MR. TAYLOR: For Mr. Grier, motion for mistrial, your Honor.
3Prior to the start of defense opening statements, the court asked, "Defense counsel, is anyone wishing to
proceed at this time with their opening?" (N. T., 1 /8/13, p. 97). Defendant's attorney responded, "Yes,
your Honor." kl
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A significant amount of information that was introduced
regarding Omar Shelton is now not going to be moved. It is not
relevant to this case. And now the jury has heard the information
through Mr. Kelly's opening.
They have been tainted by that information. And we don't
believe that Mr. Grier can get a fair trial moving forward because
that information has now been heard by the jury.
MS. JONES: Your Honor, on behalf of Mr. Rivas, we also
would move for mistrial, judge, for the same reasons that counsel
stated.
Your Honor, I think that it is practical to assume as a juror
after that information where Mr. Kelly very, specifically, laid out the
allegations against the other defendant, that he would leave all of
the sudden, just disappear, just seems to me that would be obvious
that he pied guilty, judge.
So I think it's more than him being missing. I think the
implication is that he has pied guilty.
MR. KELLY: Your Honor, much like the evidence of Mr.
DiMatteo's dealings with Kurtis St. John and Chris Curry and
Michael Pagan, and that evidence is coming in to show that Phil
DiMatteo was in the business of selling drugs. So is the evidence
that I spoke about concerning Omar Shelton.
We would ask that I still be able to introduce that evidence
concerning the May 11th stop of Omar Shelton when he was found
in possession of 184 grams. It's the same type of evidence where
the Court's permitting us to use in that section on Phil DiMatteo. I
am showing he is a drug user.
THE COURT: Now, I already gave you limits as to what you
could put in.
MR. KELLY: You did.
THE COURT: It's cumulative. It's time consuming. And it's
not directly on point. It's to give some background.
So because Mr. Shelton is not in this case any longer, and
to avoid any problem as alluded to by counsel, no, we're not going
to go into anything about Mr. Shelton on the rt" now. That's not
going to be part of this trial.
MR. KELLY: Sure.
THE COURT: That could tend to confuse the jury.
MR. KELLY: Okay.
THE COURT: That request is denied.
MR. KELLY: I understand your ruling.
At the same time, there is no prejudice to the defense that
would warrant a mistrial because the Court could permit us to
introduce that evidence. I understand why you are not. I respect
the decision.
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My point is, though, that my opening remarks have Shelton's
involvement and 184 grams on May 11th is not prejudicial. The
Court can address it through a limiting instruction. It simply does
not warrant the mistrial.
As to the inference that a jury could draw from Mr. Shelton's
absence, I submit an inference can just as equally be drawn that
the Court dismissed the charges against Mr. Shelton.
So I expressed a concern yesterday about the wording of
the Court's instruction to the jury on this matter, that wording be
used so as to not -
THE COURT: Togobclhwa~.
MR. KELLY: Yes.
So the court, I understand, will offer an instruction that
instructs the jury to make no inference, and I believe that would be
sufficient.
THE COURT: Okay. Thank you.
Based upon my review of the situation, the requests for
mistrial are denied. I do plan to give a cautionary instruction.
(N.T., 1/9/13, pgs. 6-10).
Once the jury entered the courtroom, the court gave the following thorough
cautionary instruction to them:
Good morning. Have a seat. I hope everybody had a good
evening.
Ladies and gentlemen, due to unforeseen circumstances,
Mr. Omar Shelton will no longer be a part of this case. You are all
cautioned that you are not to draw any inferences, negative or
positive, against either side, the Commonwealth, or the defendants,
nor against either defendant by this change in circumstances.
Also, regarding any information, specifically, referencing Mr.
Shelton in the Commonwealth's opening address, any statements
such as that should be disregarded and must be disregarded by
you as we go forward in this case. They are not to be applied to
Mr. Grier or Mr. Rivas in any way.
And as I said to you when we all first met when we were
selecting the jury and getting you seated, members of the jury must
consider each defendant and charges lodged against him
separately.
As I said before, if you find a defendant guilty of committing
a crime or the crimes charged, it must be because the
Commonwealth has demonstrated by evidence proving beyond a
reasonable doubt that that defendant committed each and every
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element of the crime charged, and not because of any other
reason.
So that's a cautionary instruction. And we're now ready to
proceed.
In Commonwealth v. Geho, three co-defendants were being tried together. 302
A.2d 463, 464 (Pa.Super. 1973). "During the course of the trial, two of the defendants
changed their pleas to 'guilty' in the presence of the jury. The jury was sequestered
and the two codefendants were, thereafter, dropped from the proceedings. The trial
proceeded against Girard Geho .... When the jury returned, the trial judge gave
cautionary instructions to the jury .... "~ The Geho court determined that the trial
judge adequately instructed the jury that it had the burden of finding the defendant
guilty beyond a reasonable doubt and that it could not take the codefendants' guilty
pleas into consideration. ~ at 466.
In the case at hand, the jury was not informed that Mr. Shelton had entered a
guilty plea. The plea was not announced the presence of the jury. Therefore,
Defendant's allegation that "Mr. Shelton's plea and absence from the trial raised an
inference that Mr. Grier was also guilty" is without merit. The jury did not know that a
guilty plea was entered. As set forth above, many precautionary measures were taken
to ensure that the trial continued to flow and the court gave the jury the proper
cautionary instruction. Certainly, even if there was a minute suggestion of an inference
of guilt present based on the absence of Mr. Shelton, the instruction to the jury erased
any inference and prevented any prejudice. Therefore, it was proper for this court to
deny Defendant's request for a mistrial.
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Admission of Evidence:
Defendant's sixth issue raised on appeal is that "[t]he Court erred in allowing
evidence and testimony related to drugs associated with parties who were not on trial,
or available and present in the courtroom, and who did not interact directly with the
Appellant." Defendant's seventh issue raised on appeal is that "[t]he Court erred in
allowing the admission of drugs confiscated from parties who were not on trial and who
were not directly related to the Appellant."
It is well settled in Pennsylvania law that admissibility of evidence rests within the
sound discretion of the trial court and an evidentiary decision will be reversed only upon
a showing that the discretion was abused. Commonwealth v. Chmiel, 889 A.2d 501,
521 (Pa. 2005), cert. denied, 549 A.2d U.S. 848, 127 S.Ct. 101 (2006), citing
Commonwealth v. Boczkowski, 846 A.2d 75 (Pa. 2004); and Commonwealth v. Reid,
811 A.2d 530, 550 (Pa. 2002). Further, an erroneous evidentiary ruling by a trial court
does not require an appellate court to grant relief where the error was harmless.
Chmiel, 889 A.2d at 521, citing Commonwealth v. Young, 748 A.2d 166, 193 (Pa.
1999).
Admissibility of a prior act depends on relevance and probative value.
Commonwealth v. Bullock, 948 A.2d 818, 827 (Pa.Super. 2008), quoting Commonwealth
v. Grzegorzewski, 945 A.2d 237, 239 (Pa.Super. 2008), app. denied, 954 A.2d 575 (Pa.
2008), quoting Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa. 2002). "Evidence
is relevant if it logically tends to establish a material fact in the case, tends to make a fact
at issue more or less probable or supports a reasonable inference or presumption
regarding a material fact." kl
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Evidence admissible under Pa.R.E. 404(b) is not limited to crimes that have
been proven beyond a reasonable doubt in court. Commonwealth v. Lockcuff, 813
A.2d 857, 861 (Pa.Super. 2002), app. denied, 825 A.2d 638 (Pa. 2003). "It
encompasses both prior crimes and prior wrongs and acts, the latter of which, by their
nature, often lack 'definitive proof."' isl
Pennsylvania courts have held that evidence of other crimes is admissible where
that evidence forms part of the chain or sequence of events which formed the history of
the case or was part of the natural development of the facts. Commonwealth v.
Simmons, 662 A.2d 621, 635 (Pa. 1995), citing Commonwealth v. Lark, 543 A.2d 491,
497 (Pa. 1988); and Commonwealth v. Green, 413 A.2d 651, 654 (Pa. 1980).
As discussed above, evidence was presented concerning the large multi-agency
drug investigation and the wiretaps as it applied to co-defendant Philip DiMatteo. It was
Mr. DiMatteo's phone on which the wiretap orders were approved and recorded. In
addition, the pole camera was located outside Mr. DiMatteo's residence. It was proper
for the Commonwealth to present evidence concerning the drug trafficking organization
and the various roles and workings of those in contact with the organization. Mr.
DiMatteo was not on trial with Defendant because he pied guilty prior to this trial. He
was not a cooperating witness. In fact, when the Defendants called him to testify at
trial, he asserted his Fifth Amendment right to remain silent. (N.T., 1/14/13, pgs. 25-
27).
Evidence admitted regarding the drug trafficking organization and those involved
was extremely limited to what would help the jury understand the evidence against
Defendant and his co-defendant on trial Mr. Rivas. There were thousands of drug
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related intercepted phone conversations and multiple drug buys and busts over the
lengthy investigation resulting in fourteen co-defendants being charged. Only a fraction
of this evidence was admitted at this trial.
This court limited any prejudice to Defendant concerning evidence that was
admissible against the co-defendants but not against Defendant by properly instructing
the jury. First, the court instructed the jury with regard to evidence concerning co-
defendant DiMatteo as follows:
Ladies and gentlemen, I am going to give you a cautionary
instruction before I allow this.
You are about to hear evidence concerning Phillip DiMatteo
and his drug organization. This can be considered only for the
purpose of giving you information, background on Mr. DiMatteo for
the development of the events leading to the present charges
pending against these three individuals, defendants.
The evidence you are about to hear concerning Phillip
DiMatteo can be considered only for the purpose of giving you
information and background on Mr. DiMatteo for the purpose of
development of the events that lead to the present charges on
these three defendants and the specific charges against each of
them.
This DiMatteo information is not to be considered for any
other purpose. The matters that you will hear are not to be
employed by you to form any inferences with respect to these three
defendants in those specific Phil DiMatteo matters about which you
will hear testimony.
You must not consider the specific instances regarding Mr.
Phillip DiMatteo as evidence against any of these three defendants,
Mr.Shelton, Mr. Rivas and Mr. Grier.
As you know, if you find any of these defendants guilty of
committing any of the crimes for which they are charged, it must be
only because the Commonwealth has demonstrated by evidence
proving beyond a reasonable doubt that the defendant committed
each and every element of the crimes charged in their specific
cases.
So with that cautionary instruction, you may proceed.
(N.T., 1/8/13, pgs. 134-136).
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Thereafter, the court gave the following cautionary instruction to the jury
immediately before evidence of the recorded phone conversations was presented:
So another thing I have to tell you is we have two separate
defendants here on trial. They are being tried together, but they
each face independently and separately from each other a series
of charges. You must consider each piece of evidence you are
about to hear only as it relates to the defendant who's involved in
that tape.
If you find something in the tape with one of the defendants
that you think is compelling evidence, you are not to apply it in any
way or let it give any negative inference in any way towards the
other defendant. Each defendant is to be judged by evidence
presented, specifically, against that defendant.
And in terms of the tapes, there is, it will be clear which
defendant is being discussed. And that's the defendant, only
defendant, you can apply that evidence to. Whether you accept
the evidence or whether you reject it, it relates to that person.
Again, if you find either of those defendants guilty of
committing any of the crimes for which he is charged, it must be
because the Commonwealth has demonstrated by evidence
proving beyond a reasonable doubt that that defendant committed
each and every element of each crime charged. Thank you.
(N.T., 1/10/13, pgs. 171-172).
Just prior to the jury momentarily seeing the drugs which were confiscated from
a codefendant not on trial, but intended to be delivered to Mr. DiMatteo, the court gave
the jury the following cautionary instruction:
Ladies and gentlemen of the jury, again, I am going to give you a
cautionary instruction.
As you know, you were given an introduction by Mr. Kelly
about the stages of his presentation. And I am allowing in some
evidence concerning the Phillip DiMatteo operation only to give you
information and background on Mr. DiMatteo, background that ties
in to why there was a wire, and for the development of the events
leading to present charges against these two defendants.
You are going to be presented with some evidence shortly
that is not to be considered for any specific charge against these
defendants. And it is only for the background that I have just
described, and development of the events leading to the present
charges for which I am allowing it.
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You are not to use the evidence that you are about to be
presented with by you to form any inference with respect to these
defendants, Mr. Rivas and Mr. Grier, on the specific charges to
which they are before you.
You must not consider the specific information regarding the
Phil DiMatteo matters, as evidence against, or anyone else
involved in the Phil DiMatteo matters who are not defendants here,
you can't use any specific instances for those others against any of
the defendants, not Mr. Rivas or not Mr. Grier.
By the way, if you find either of these two defendants guilty
of committing crimes for which they are charged, it must be
because the Commonwealth has demonstrated at the conclusion
of the case by evidence proving beyond a reasonable doubt that
the defendant committed each and every element of any crimes
charged.
Proceed.
(N.T., 1/9/13, pgs. 191-193).
In addition, the court gave the following instructions to the jury in the final charge:
Now, members of the jury, I am going to remind you that
throughout this charge, when I refer to defendant or defendants as
I read the charge, you must apply the instructions separately and
independently to each defendant, Mr. Jerome Grier and Mr. Khye
Rivas. Although evidence has been presented in one trial, each
defendant and his charge must be considered separately and
independently from the other.
At the outset, when Mr. Kelly was presenting information
about the background of Phillip DiMatteo, the individual on whose
phone the wire was placed, I cautioned you that the background
evidence you heard concerning DiMatteo could be only considered
for the development of the events leadinqto the present charges.
It was not to be considered for any other purpose.
I am now restating that cautionary and limiting instruction
that still controls. If you find either of these defendants guilty of
committing the crimes for which he is charged, it must be because
the Commonwealth has demonstrated by evidence proving beyond
a reasonable doubt that the defendant committed each and every
element of the crimes charged in these matters.
There is a further rule that restricts use by you of the
evidence offered to show that each defendant made statements
concerning crimes charged against that individual defendant as a
statement made before trial may be considered as evidence only
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against the defendant who made that statement. Thus, you may
consider any statements only as evidence against the defendant
who made it. You must not, however, consider the statement as
evidence against the other defendant. You must not use the
statement in any way against him.
(N.T., 1/15/13, pgs. 82-83 and 89-90).
Since jurors are deemed to follow the court's directions, these proper instructions
were sufficient to remove any potential spillover prejudice to the defendant against
whom the evidence was not admitted. The evidence was properly admitted for the
limited purpose of establishing the chain or sequence of events which formed the
history of the case and the natural development of the facts. It assisted the triers of fact
to understand the workings of the drug trafficking organization and Defendant's role
within it. Accordingly, Defendant's issues on appeal regarding the admissibility of said
evidence are without merit.
Closing Argument:
Defendant's eighth issue raised on appeal is that "[t]he Court erred in giving an
instruction to the jury to disregard a portion of Defense Counsel's closing argument
following the Commonwealth's misquotation and untimely objection after Defense
Counsel's closing argument."
Following defense counsel's closing argument, the Commonwealth voiced an
objection at sidebar. (N.T., 1/15/13, pgs. 34-38). The objection was that defense
counsel argued to the jury that "the police never told the jury that anyone told them that
they bought drugs off of Grier. That's simply inadmissible hearsay. We have no
obligation to do that. I ask for a jury instruction on that." (N.T., 1/15/13, p. 35).
During closing argument, defense counsel stated, "So where's the people that
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bought it? Coatesville is 15,000 people. It might sound like a lot, but that's a pretty
small town, in the general sense. Nobody, nobody, no pictures. And in this day of red
light cameras, we don't even have a photo of any kind of exchange. Coatesville is a
pretty concentrated place. There is information out there. The trooper even told you,
hey, I got experience going undercover in Coatesville. Nobody said they bought
anything." (N.T., 1/15/13, p. 27). It is the final sentence, "Nobody said they bought
anything," that appears to the objected to statement.
First, Defendant's allegation that the Commonwealth's objection was untimely is
without merit. Immediately upon conclusion of defense counsel's closing argument, the
Commonwealth asked to speak to the court and a sidebar conversation ensued.
Pennsylvania law has held that when closing arguments are recorded, objections at the
close thereof are considered timely. Commonwealth v. Raffensberger, 435 A.2d 864,
867 (Pa.Super. 1981), citing Commonwealth v. Gilman, 368 A.2d 253 (Pa. 1977);
Commonwealth v. Allessie, 406 A.2d 1068 (Pa.Super. 1979). In this trial closing
arguments were recorded and could have been read back by the court reporter, if
requested.
Second, Defendant's argument on appeal that the Commonwealth misquoted his
argument and the Court erred by giving a curative instruction is also without merit based
upon the nature of the court's instruction to the jury. The jury was not told the words or
interpretation of the words that were argued. Rather, the court said that "there is a
belief that Mr. Taylor, in his argument, said that the police never told you that anyone
said that they bought drugs off of Mr. Grier. What Mr. Taylor said is subject to your
recollection, not anyone else's. But if you do recall that, I am instructing you to
23
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disregard it. Because such evidence would be impermissible hearsay. And the
Commonwealth is aware of that, and you should not draw any adverse inferences
against the Commonwealth from the lack of an attempt to present such impermissible
hearsay. Thank You." (emphasis added). (N.T., 1/15/13, pgs. 38-39).
This instruction placed the recollection and interpretation of the language used
by defense counsel on the trier of fact and properly instructed the jury regarding
hearsay. Accordingly, this issue on appeal should be denied.
Mandatory Minimum Sentence:
Defendant's ninth issue raised on appeal is that "[t]he Court erred in finding that
the Appellant possessed ten or more grams of cocaine with intent to distribute that
cocaine. Therefore, the Court erred in sentencing the Appellant to a mandatory term of
imprisonment for possession with intent to distribute cocaine." We disagree. On
counts 1, 2, 3, 4, 5, 6, 7 and 9, all for possession with the intent to deliver in violation of
35 Pa.C.S.A. § 780-113(a)(30), Defendant was properly given the mandatory minimum
sentence of 5 years imprisonment.
At the sentencing hearing, Pennsylvania State Police Trooper Joseph Fanning
testified about the nine incidents on which Defendant was found guilty of possession with
intent to deliver.4 The parties stipulated that for the purposes of sentencing Trooper
Fanning was qualified as an expert witness to render opinions in the field of narcotics
trafficking. (N.T., 4/24/13, p. 27).
Trooper Fanning testified that under the circumstances of this case, a half ounce
of cocaine (14 grams) would sell for approximately $500 and an ounce of cocaine (28
4
Trooper Fanning's testimony can be found at N.T., 4/24/13, pgs. 26-59.
24
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grams) would sell for $1 ,000 or more. (N.T., 4/24/13, pgs. 32-37). The expert testified
regarding the incident dates on the verdict slip and the corresponding recorded phone
calls to establish the amount of drugs possessed and sold based on the amount of
money transferring between Defendant and Mr. DiMatteo.
For example, regarding Count 1, on March 23, 2010 Defendant contacted Mr.
DiMatteo for cocaine and on March 24, 2010 they had a follow-up conversation in which
Defendant was bringing $1,200 to DiMatteo for the cocaine he received the prior day.
Based on the amount of money, the expert reasoned that Defendant had been given and
sold a minimum of an ounce or 28 grams of cocaine. (N.T., 4/24/13, pgs. 32-32).
Based on this transaction, it was proper for the court to sentence Defendant to the
mandatory minimum incarceration sentence which is justified for possessing ten or more
grams of cocaine with intent to distribute. Pursuant to 18 Pa.C.S.A. § 7508(a)(3)(ii), due
to Defendant's prior conviction for a drug trafficking offense, the mandatory minimum
sentence of 5 years incarceration was warranted.
Trooper Fanning also testified regarding the other incident dates on which
Defendant was found guilty and the basis for his opinion regarding the amount of drugs
Defendant possessed with intent to deliver. He testified that count 2, the April 14, 2010
incident, involved a half ounce of cocaine. (N.T., 4/24/13, pgs. 35-36). Count 3, the
April 24, 2010 incident, involved more than a half an ounce of cocaine. (N.T., 4/24/13,
pgs. 36-38). Count 4, the May 3, 2010 incident, involved an ounce of cocaine. (N.T.,
4/24/13, pgs. 38-39). Count 5, the May 4, 2010 incident, involved an ounce of cocaine.
(N.T., 4/24/13, pgs. 39-40). Count 6, the May 5, 2010 incident, involved an ounce of
cocaine. (N.T., 4/24/13, pgs. 40-43). Count 7, the May 7, 2010 incident, involved an
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ounce of cocaine. (N.T., 4/24/13, pgs. 43-45). Count 9, the May 20, 2010 incident
involved an ounce of cocaine. (N.T., 4/24/13, pgs. 49-51).
Accordingly, Defendant faced mandatory minimum sentences on all these counts
of his possession with intent to deliver convictions. This court imposed the mandatory
minimum sentence on counts 1, 2, 3, 4, 5, 6, 7 and 9. Defendant's allegation that this
Court erred in finding that he possessed ten or more grams of cocaine with intent to
distribute is not supported by the evidence presented at trial and at sentencing. The
mandatory minimum sentence imposed was based on the evidence and was proper
under Pennsylvania law.
Recidivism Risk Reduction Initiative:
Defendant's tenth issue raised on appeal is that "[t]he Court erred in denying the
Appellant a (RRRI) Recidivism Risk Reduction Initiative minimum sentence based on a
prima facie finding on the charge of resisting arrest, a charge which is not an ineligible
offense under the RRRI statue (sic)."
Defendant is correct that resisting arrest is not a specifically listed ineligible
offense in the RRRI statute. However, this court determined that Defendant was an
ineligible offender for RRRI since he demonstrated a history of past violent behavior
under 61 Pa.C.S.A. § 4503 due to his resisting arrest charge. Counsel was unable to
provide, and this court was unable to find, any Pennsylvania case law on this exact
issue. Nonetheless, the United States Court of Appeals, Third Circuit, has issued four
opinions holding that a Pennsylvania conviction for resisting arrest qualified as a crime
of violence. U.S. v. Stinson, 592 F.3d 460 (3rd Cir. 2010), cert. denied, 131 S.Ct. 114
(201O); U.S. v. Garrett, 504 Fed.App. 132 (3rd Cir. 2012); U.S. v. Thomas, 435
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Fed.Appx. 117 (3rd Cir. 2011), cert. denied 132 S.Ct. 359 (2011); and U.S. v. Beason,
238 Fed.Appx. 854 (3rd Cir. 2007), cert. denied 128 S.Ct. 2049 (2008).
These courts were examining Pennsylvania's resisting arrest statute as applied
under the career offenders sentencing guidelines. While this is not the current issue
before the court, it does give guidance as to whether a resisting arrest charge would
make a defendant ineligible for RRRI as demonstrating a history of past violent
behavior.
This court also specifically examined the language of the Pennsylvania resisting
arrest statute which states as follows: "A person commits a misdemeanor of the
second degree if, with the intent of preventing a public servant from effecting a lawful
arrest or discharging any other duty, the person creates a substantial risk of bodily
injury to the public servant or anyone else, or employs means justifying or requiring
substantial force to overcome the resistance." 18 Pa.C.S.A. § 5104.
A convicted offender would have created a substantial risk of bodily injury or
employed means justifying or requiring substantial force to overcome the resistance.
As the Standard Criminal Jury Instructions sets forth a person cannot be found guilty of
this crime if he merely tried to run away from, scuffled with or argued with an officer,
public servant or other official. P.S.S.C.J.I. 15.5104.
Therefore, this court concluded that someone who resisted arrest demonstrated
a history of past violent behavior and would be an ineligible offender for RRRI.
Supplemental Issue:
Defendant filed a Notice of Appeal on May 15, 2013. On that same date this court
entered an order directing Defendant's counsel to file a concise statement of errors
27
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complained of on appeal no later than twenty-one (21) days after the entry of the order.
On May 21, 2013, Defendant filed a Request for Extension of Time to file the statement
due to the need to obtain the transcripts. An Order was entered on May 22, 2013
granting Defendant's request for an extension and ordering said statement to be filed no
later than June 19, 2013. The order specifically states that "[a]ny issue not properly
included in the Statement timely filed and served shall be deemed waived."
Defendant's concise statement, filed on June 19, 2013, was timely. However, his
supplemental statement, filed on June 20, 2013, was untimely. Accordingly, the
supplemental issue raised in the untimely statement is deemed waived.
BY THE COURT:
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IN THE COURT OF COMMON PLEAS
COMMONWEALTH OF PENNSYLVANIA
: CHESTER COUNTY, PENNSYLVANIA
vs
: CRIMINAL ACTIONc)
(-::,-
JEROME GRIER zr; {'·'1
: NO. 1348 -11 ,.,;.::,
en.A
DEFENDANT --t
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Stephen Kelly, Esquire, on behalf of the Commonwealth. c:,,o ::g:
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Trevor Taylor, Esquire, on behalf of Defendant. -u :;,,:)
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a: N
C.,J
OPINION
On January 18, 2012, Defendant filed a Motion to Suppress. Said motion was
replaced later by an Amended Motion to Suppress Evidence, filed April 3, 2012 .. A
hearing was held on March 19, 2012. Defendant's Memorandum of Law was filed April
. 2, 2012 and the Commonwealth's Memorandum of Law was filed April 13, 2012.
Defendant's Motion requests suppression of all Wiretap Act evidence generated in this
matter.
On March 19, 2010, the Chester County District Attorney's Office presented an
Application for an Order Authorizing the Interception of Electronic and Wire
Communications to the Pennsylvania Superior Court, requesting to intercept eiectronic
and wire communications of co-defendant, Phillip Dimatteo, who utilizes Sprint Nextel
Corporation telephone number 215-239-0542 and Nextel Direct Connect number
168*651*3330. As required, an Affidavit in Support of Application was attached, in
addition to other Exhibits. The Honorable Paula Francisco Ott reviewed the Application
and supporting documentation and determined that probable cause existed in support of
the request and on March 19, 2010 executed an Order Authorizing the Interception of
Electronic and Wire Communications.
~1,.,cd ·
1~2-/~ 1
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Interception of these electronic and wire communications began on March 22,
2010. Pursuant to the Authorization Order, the Chester County District Attorney's Office
submitted Progress Reports to the Superior Court.
On April 20, 2010, the Chester County District Attorney's Office presented to
Superior Court Judge Ott an Application for an Order Extending the Authorization for the
Interception of Electronic and Wire Communications of co-defendant Dimatteo who
utilizes Sprint Nextel Corporation telephone number 215-239-0542 and Nextel Direct
Connect number 168*651*3330. As required, an Affidavit in Support of Application was
attached, in addition to other Exhibits. The Honorable Paula Francisco Ott reviewed the
Application and supporting documentation and determined that probable cause existed
in support of the request and on April 20, 2010 executed an Order Extending the
Authorization of the Interception of Electronic and Wire Communications.
Interception of these electronic and wire communications continued and the
Chester County District Attorney's Office continued to submit Progress Reports to the
Superior Court. Interception was terminated on May 19, 2010.
On May 18, 2010, the Chester County District Attorney's Office presented an
Application for an Order Authorizing the Interception of Electronic and Wire
Communications to the Pennsylvania Superior Court, requesting to intercept electronic
and wire communications of co-defendant Dimatteo, who utilizes Sprint Nextel
Corporation telephone number 610-350-5789 and Nextel Direct Connect number
168*663*15526. As required, an Affidavit in Support of Application was attached, in
addition to other Exhibits. The Honorable Paula Francisco Ott reviewed the Application
and supporting documentation and determined that probable cause existed in support of
2
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the request and on May 18, 2010 executed an Order Authorizing the Interception of
Electronic and Wire Communications.
Interception of these electronic and wire communications began on May 19,
2010. Pursuant to the Authorization Order, the Chester County District Attorney's Office
submitted Process Reports to the Superior Court. Interception was terminated on June
8, 2010.
The wiretap applications and Orders were issued by the Superior Court pursuant
to the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A.
§ 5701, etc. seq. Pursuant to the act, "[a]ny aggrieved person who is a party to any
proceeding in any court, board or agency of this Commonwealth may move to exclude
the contents of any wire, electronic or oral communication, or evidence derived
therefrom, on any of the following grounds .... " 18 Pa.C.S.A. § 5721.1 (b). The grounds
on which a motion to exclude may be based are as follows:
(1) Unless intercepted pursuant to an exception set forth insection 5704
(relating to exceptions to prohibition of interception and disclosure of
communications), the interception was made without prior procurement of
an order of authorization under section 5712 (relating to issuance of order
and effect) or an order of approval under section 5713(a) (relating to
emergency situations) or 5713.1 (b) (relating to emergency hostage and
barricade situations).
(2) The order of authorization issued under section 5712 or the order of
approval issued under section 5713(a) or 5713.1 (b) was not supported by
probable cause with respect to the matters set forth in section 571 O(a)(1)
and (2) (relating to grounds for entry of order).
(3) The order of authorization issued under section 5712 is materially
insufficient on its face.
(4) The interception materially deviated from the requirements of the order
of authorization.
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(5) With respect to interceptions pursuant to section 5704(2), the consent
to the interception was coerced by the Commonwealth ..
(6) Where required pursuant to section 5704(2)(iv), the interception was
made without prior procurement of a court order, or without probable
cause.
18 Pa.C.S.A. § 5721.1(b).
When considering a motion to exclude under subsection (b)(2) alleging that the
authorization order was not supported by probable cause, the court shall examine both
the written application under section 571 O(a) and all matters that were presented to the
judge under section 5710(b). 18 Pa.C.S.A. § 5721.1(c)(2).
A defendant shall bear the burden of proving by a preponderance of the evidence
the grounds for exclusion asserted under 18 Pa.C.S.A. § 5721.1 subsection (b)(3) and
(4). 18 Pa.C.S.A. § 5721.1(c)(3). The Commonwealth shall bear the burden of proof by
a preponderance of the evidence with respect to exclusion claims under 18 Pa.C.S.A. §
5721.1 subsection (b)(1), (2) and (5). 18 Pa.C.S.A. § 5721.1(c)(4). With respect to
exclusion claims under 18 Pa.C.S.A. § 5721.1 subsection (b)(6), the defendant shall
have the initial burden of demonstrating by a preponderance of the evidence that the
interception took place in his home. Once he meets this burden, the burden shall shift to
the Commonwealth to demonstrate by a preponderance of the evidence that the
interception was in accordance with section 5704(2)(iv). 18 Pa.C.S.A. § 5721.1 (c)(5).
Defendant sets forth the following arguments in support of his request to
suppress the evidence of the electronic and wire communications. First, Defendant
argues that the Authorization Order is not supported by probable cause because the
4
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Commonwealth presented information it knew to be false and misleading. Therefore,
Defendant suggests that a Franks hearing needs to be held.
Second, Defendant alleges that the Commonwealth materially deviated from the
Orders of Authorization and Extension as follows: There was probable cause that the
wiretap of co-defendant DiMatteo would capture communications with Defendant, yet
Defendant's name was omitted from orders; and Defendant is charged with offenses
which are not included in the Superior Court Orders. Defendant argues that these two
reasons represent a material deviation from the Authorization Orders and the wiretap
evidence should be excluded.
We shall address each of Defendant's arguments. This court disagrees with
Defendant's arguments that the Order of Authorization was not supported by probable
cause. As a matter of fact, there is overwhelming evidence that the cell phones in
question had been and would continue to be utilized by co-defendant Dimatteo for drug
activities. Three experienced drug investigators executed the affidavit outlining their
investigation into the Rodriguez-Cruz Drug Trafficking Organization and the significant
role Dimatteo is alleged to have played in selling drugs in Chester County. This
included calls confidential informants placed to Dimatteo on the 215-239-0542 phone'
number to set up and make arrangements for the drug buys.
The evidence presented also included the analysis of the data obtained from the
pen register and trap and trace device records authorized by Federal Magistrate Judge
Linda Caracappa of the Eastern District of Pennsylvania. Once the first wiretap was in
place and the calls were being intercepted, the evidence confirmed the nature of the
calls and that the phone was being used for drug related purposes, which supported the
5
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affidavit in support of the extension of the wiretap as well as the affidavit in support of
the wiretap on the phone with the number 610-350-5789. Therefore, Defendant's
argument that the Order of Authorization was not supported by probable cause must
fail.
This court also disagrees with Defendant's argument that he is entitled to a
Franks hearing because the affidavits in support of the wiretap applications were based
on false statements or made with reckless disregard for the truth and that these
statements should be set aside and the affidavit should be reviewed without those
statements.
The United States Supreme Court has held that, where a "defendant makes a
substantial preliminary showing that a false statement knowingly and intentionally, or
with reckless disregard for the truth, was included by the affiant in the warrant affidavit,
and if the allegedly false statement is necessary to the finding of probable cause, the
Fourth Amendment requires that a hearing be held at the defendant's request." Franks
v. Delaware, 438 U.S. 154, 155-156, 98 S.Ct. 2674, 2676 (1978). "In the event that at
that hearing the allegation of perjury or reckless disregard is established by the
defendant by a preponderance of the evidence, and, with the affidavit's false material
set to one side, the affidavit's remaining content is insufficient to establish probable
cause, the search warrant must be voided and the fruits of the search excluded to the
same extent as if probable cause was lacking on the face of the affidavit." kl
In the case at hand, Defendant has failed to make a substantial preliminary
showing that a false statement was included in the warrant affidavits. Defendant
alleges that "the Commonwealth presented information it knew to be false and
6
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misleading within its various Affidavits and requests that a hearing ... [be] held in
accordance with the holding in Franks v. Delaware, 438 U.S. 154 (1978)." However, he
does not set forth that information is alleged to be false and misleading. Defendant fails
to direct the court to the statements that need to be examined. He has, therefore, failed
to meet his preliminary burden, he is not entitled to a Franks hearing and the claim must
be denied.
Defendant's next argument is that the Commonwealth violated 18 Pa.C.S.A. §
5721(b) by materially deviating from the Orders of Authorization and Extension. He
argues that the evidence obtained as a result of these orders should be suppressed.
Defendant argues that there was probable cause that the wiretap of co-defendant
DiMatteo would capture communications with Defendant, therefore, he was a "known"
person whose communications would be intercepted under 18 Pa.C.S.A. § 5712(a)(2).
Defendant claims that his name being omitted from all Orders of Authorization
represents a material deviation from the Orders under 18 Pa.C.S.A. § 5721.1(b)(3)(4).
In support of this allegation, Defendant sets forth the following argument: "A
straight forward reading of the Order of the Superior Court excludes all those who
qualify as known. Under the doctrine of lnclusio unius est exclusion alterius - the
inclusion of one is the exclusion of another - since the Superior Court authorized the
wiretap of Mr. DiMatteo and others unknown, the Superior Court therefore did not permit
the wiretap of those known." This court finds Defendant's argument to be illogical under
the circumstances of this case.
Yes, the Superior court was advised about the information the drug task force
had compiled about the drug organization as was known to them at the time the
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Application for the wiretap was submitted. It was all of these known factors and
individual's actions that created the probable cause for the authorization for the wiretap
and electronic communications order. The facts established that co-defendant Dimatteo
utilized that phone in question to set up drug purchases and distributions. The goal was
to discover the process by which the drugs were moved and to discover the source of
the drugs to Dimatteo and the individuals used to distribute the drugs.
The Superior Court ordered the Commonwealth to submit frequent progress
reports that continued to update the court with the details of the investigation and the
individuals involved. After receiving the progress reports, request for an extension and
request for a new order on the new phone number, the court granted both the extension
and new order request, knowing the Commonwealth was gathering evidence and
building its case against Defendant, Dimatteo and many others, while at the same time
trying to identify the unknown individuals in the organization. There is no requirement
that each and every person that may contact Dimatteo on the number in question or be
contacted by Dimateo on the number in question be listed in the Order.
Defendant alleges that the Commonwealth materially deviated from the Orders of
Authorization and Extension by charging Defendant with offenses which are not
included in the Superior Court Orders. Defendant argues that the court in "Hashem did
not permit an individual to be charged with a crime which was not authorized under the
Order, or subsequently approved by the authorizing court." However, what the
Pennsylvania Supreme Court in Commonwealth v. Hashem actually held was that "the
Commonwealth's failure to obtain permission to disclose communications intercepted
under Wiretap Act for use in prosecution of crime different than targeted crime, prior to
8
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disclosing contents of communications, irreversibly tainted conviction." 584 A.2d 1378,
1381-1382 (Pa. 1991). Contrary to Defendant's claim, the Hashem court did not hold
that an individual can only be charged with crimes set for in the authorization order or
subsequently approved by the authorizing court. The focus of the Hashem opinion was
the lack of authorization to disclose the contents of the wiretap and the timing of said
disclosure.1
.- r-..:>
Accordingly, this court finds that the Commonwealth did ngJ;vfola~18
...i._fTI
F:.~',,,;'
9~C.S.A.
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§ 5721 (b) by materially deviating from the Orders of Authorizatio~and
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Based upon the foregoing, the following Order is entered: · C) 0
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ORDER
AND NOW, this J) day of October, 2012, upon consideration of
Defendant's Amended Motion to Suppress Evidence, filed April 3, 2012, the hearing
held on March 19, 2012, Defendant's Memorandum of Law, filed April 2, 2012 and the
Commonwealth's Memorandum of Law, filed April 13, 2012, it is hereby ,ORDERED and
DECREED that Defendant's request to suppress evidence is DENIED and the motion is
DISMISSED.
BY THE COURT:
J.
1 It must also be noted that the Hashem case interpreted the Wiretap Act before it was amended to
include the exclusive remedy provision. Commonwealth v. Steward, 918 A.2d 758, 761, fn 6, (Pa.Super.
2007), app. denied, 945 A.2d 170 (Pa. 2008), citing Commonwealth v. Donahue, 630 A.2d 1238, 1248,
fn 11, (Pa.Super. 1993).
9