Com. v. Rivas, K. ( 2015 )

J. A32034/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KHYE RIVAS, :
:
Appellant : No. 2621 EDA 2013
Appeal from the Judgment of Sentence April 10, 2013
In the Court of Common Pleas of Chester County
Criminal Division No(s).: CP-15-CR-0001411-2011
BEFORE: PANELLA, OLSON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JUNE 30, 2015
Appellant, Khye Rivas,1 appeals from the judgment of sentence
entered in the Chester County Court of Common Pleas following a jury trial
and convictions for two counts of possession with intent to deliver
(“PWID”),2 two counts of possession of a controlled substance,3 fifteen
counts of criminal solicitation,4 three counts of criminal use of a
*
Former Justice specially assigned to the Superior Court.
1
Appellant was tried with co-defendant Jerome Grier, whose appeal is
docketed at 1429 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 one count 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. Appellant also challenges the sufficiency of the evidence for his
conviction for dealing in proceeds of unlawful activities and asserts his
convictions for PWID and criminal solicitation were against the weight of the
evidence. 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
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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arrest of fifteen other defendants who were involved in this
drug trafficking organization.
Trial Ct. Op., 8/28/13, at 1.
With respect to Appellant, the police intercepted numerous calls to
DiMatteo soliciting drugs. See, e.g., N.T. Trial, 1/10/13, at 208-09; Ex. C-
36.9 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
214-15. The police testified about numerous conversations between
Appellant and DiMatteo regarding various drug transactions. See, e.g., id.
at 209-10, 213-14; N.T. Trial, 1/11/13, at 46-47, 63-66, 69-71. After a
seven-day jury trial and four hours of deliberation, the jury found Appellant
guilty of the above crimes.
On April 10, 2013, the trial court sentenced Appellant to an aggregate
total of twelve and one-quarter to twenty-four and one-half years’
imprisonment. Those sentences included, inter alia, one mandatory
minimum sentence based upon a conviction for possession with intent to
deliver cocaine. Appellant timely filed a post-sentence motion challenging,
inter alia, the weight of the evidence for his convictions for possession with
intent to deliver; his motion did not challenge the weight of the evidence for
his convictions for criminal solicitation. The court denied Appellant’s post-
9
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 Jerome Sherwin Grier.
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sentence motion and Appellant timely appealed. Appellant timely filed a
court-ordered Pa.R.A.P. 1925(b) statement.
Appellant raises the following eight issues:
Did the court err in admitting wiretap evidence that was
illegally obtained?
Did the court err in denying [Appellant’s] motion for
mistrial after co-defendant Omar Shelton pled guilty during
the trial?
Did the court err in permitting Trooper Justin Hope to
testify about a traffic stop of Christopher Curry and
permitting Trooper Hope to show cocaine to the jury that
was possessed by Mr. Curry [Trial Exhibit C-17]?
Under the Sixth and Fourteenth Amendments of the U.S.
Constitution and Article I, § 9 of the Pennsylvania
Constitution, was evidence insufficient to sustain
Appellant’s conviction for dealing in proceeds of unlawful
activities, 18 Pa.C.S.A. [§] 5111?
Under the Sixth and Fourteenth Amendments of the U.S.
Constitution and Article I, § 9 of the Pennsylvania
Constitution, was Appellant’s conviction for possession with
intent to deliver a controlled substance against the weight
of the evidence?
Under the Sixth and Fourteenth Amendments of the U.S.
Constitution and Article I, § 9 of the Pennsylvania
Constitution, was Appellant’s conviction for criminal
solicitation against the weight of the evidence?
Should [Appellant’s] mandatory sentence for PWID [April
14, 2010], pursuant to 18 Pa.C.S. § 7508, be vacated
because facts that increased his sentence, in this case, the
weight of the cocaine, are an element that should have
been submitted to the jury and found beyond a reasonable
doubt?
Is [Appellant] an ‘eligible offender’ under the provisions of
the Recidivism Risk Reduction Incentive [RRRI]?
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Appellant’s Brief at 10-11 (reordered to facilitate disposition).
In support of his first issue, Appellant argues that in support of the
wiretap application, the Commonwealth falsely averred that normal
investigative techniques would not work and speculates that such techniques
would have worked. Id. at 16-17. Accordingly, Appellant reasons the order
authorizing the wiretap should be “quashed.” Id. at 19. We hold 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.
Landis, 89 A.3d at 702 (citation omitted).10 After careful review of the
parties’ briefs, the record, and the decision of the Honorable Phyllis R.
Streitel, we affirm this issue on the basis of the trial court’s reasoning. See
10
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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Trial Ct. Op., 10/10/12, at 7-8 (holding that Appellant’s claim of false
statement is misleading as affiants identified results of normal investigative
techniques and explained necessity of wiretap, and thus Appellant has not
made substantial preliminary showing of knowing and intentional false
statement).
We quote the second paragraph of Appellant’s two-paragraph
argument in support of his second issue:
[The trial court] gave a cautionary instruction to the
jury in conformance with Commonwealth v. Geho, 302
A.2d 463 (Pa. Super. 1973). However, [Appellant]
suffered incurable prejudice with the withdraw [sic] of Mr.
Shelton from the case. The implication is that Mr. Shelton
pled guilty, especially in light of Mr. Shelton’s confession.
[Appellant’s] motion for mistrial should have been granted.
Appellant’s Brief at 20. We disagree.
A motion for a mistrial is within the discretion of the
trial court. 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 the appellant of a fair and
impartial trial. 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. On
appeal, our standard of review is whether the trial court
abused that discretion.
Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa. Super. 2003)
(citations, footnote, and some punctuation omitted). After a thorough
review of the record, the parties’ appellate arguments, and the trial court’s
decision, we agree that Appellant has not established an abuse of discretion
for his first two issues. See Trial Ct. Op., 12/12/13, at 3-8 (holding
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Shelton’s guilty plea was not in jury’s presence; jury given appropriate
cautionary instruction; reasonable inference that Shelton’s counsel suffered
injury from accident; and that Superior Court in Geho, supra, which
affirmed denial of motion for mistrial after defendant’s two-codefendants
pleaded guilty in jury’s presence and court gave cautionary instruction
governs instant case).
In support of his third issue, Appellant suggests the trial court erred by
admitting testimony of a traffic stop of Christopher Curry and cocaine seized
as a result of that stop. See Appellant’s Brief at 20. The seizure was not
connected to Appellant and was used by the Commonwealth to establish
DiMatteo “was a big drug dealer.” N.T., 1/9/13, at 186. Appellant
complains the evidence had no probative value and thus was outweighed by
prejudice. Appellant’s Brief at 22. For his fourth issue, Appellant challenges
whether the evidence was insufficient for his convictions for dealing in
proceeds of unlawful activities. He insists that the Commonwealth failed to
adduce evidence that he had knowledge that he conducted a financial
transaction involving the proceeds of an illegal drug transaction. Id. at 29.
Appellant maintains that there was no evidence that the money he “used to
purchase drugs from DiMatteo was derived from illegal activity, nor that
there was concealment or money laundering on” Appellant’s part. Id. at 30.
We ascertain no basis for relief for either issue.
The standard of review for admission of evidence follows:
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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.
Commonwealth v. Northrip, 945 A.2d 198, 203 (Pa. Super. 2008)
(citations and formatting omitted).
The standard of review for a challenge to the sufficiency of evidence is
de novo, as it is a question of law. Commonwealth v. Ratsamy, 934 A.2d
1233, 1235 (Pa. 2007).
[T]he critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction . . . does not
require a court to ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt. Instead, it must determine simply whether the
evidence believed by the fact-finder was sufficient to
support the verdict.
Id. at 1235-36 (citations and some punctuation omitted). “When reviewing
the sufficiency of the evidence, an appellate court must determine whether
the evidence, and all reasonable inferences deducible from that, viewed in
the light most favorable to the Commonwealth as verdict winner, are
sufficient to establish all of the elements of the offense beyond a reasonable
doubt.” Id. at 1237 (citation and some punctuation omitted).
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The Pennsylvania Crimes Code defines dealing in proceeds of unlawful
activities as follows:
(a) Offense defined.—A person commits a felony of the
first degree if the person conducts a financial transaction
under any of the following circumstances:
(1) With knowledge that the property involved,
including stolen or illegally obtained property,
represents the proceeds of unlawful activity, the person
acts with the intent to promote the carrying on of the
unlawful activity.
(2) With knowledge that the property involved,
including stolen or illegally obtained property,
represents the proceeds of unlawful activity and that
the transaction is designed in whole or in part to
conceal or disguise the nature, location, source,
ownership or control of the proceeds of unlawful
activity.
(3) To avoid a transaction reporting requirement under
State or Federal law.
18 Pa.C.S. § 5111(a)(1)-(3).
After careful review of the parties’ briefs on Appellant’s third issue, the
record, and the trial court’s decision, we affirm. See Trial Ct. Op.,
12/12/13, at 8-14, 23 (holding court gave extensive cautionary instructions
on multiple occasions with respect to admitted evidence and jury presumed
to heed such instructions;11 Commonwealth adduced sufficient evidence that
Appellant used proceeds from selling drugs to purchase additional drugs);
11
Even presuming the court erred by admitting the evidence at issue, we
would hold such error harmless given the extensive intercepted
communications inculpating Appellant. See Northrip, 945 A.2d at 203.
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see generally N.T. Trial, 1/10/13, at 209-10; N.T. Trial, 1/11/13, at 46-47,
63-66, 69-71.
We summarize Appellant’s arguments for his fifth and sixth issues
together. He maintains that his convictions for possession with intent to
deliver and criminal solicitation were against the weight of the evidence. We
hold Appellant is due no relief.
A challenge to the weight of the evidence “concedes that there is
sufficient evidence to sustain the verdict.” Commonwealth v. Widmer,
744 A.2d 745, 751 (Pa. 2000). This Court cannot “entertain a challenge to
the weight of the evidence since [our] examination is confined to the ‘cold
record.’” Commonwealth v. Brown, 648 A.2d 1177, 1191 (Pa. 1994)
(citation omitted). We only review whether the trial court abused its
discretion when it evaluated the challenge. Id. (limiting review of weight of
evidence claim to whether trial court abused discretion). For these reasons,
a challenge to the weight of evidence may not be raised for the first time on
appeal. See generally id.; see also Pa.R.A.P. 607(a). Thus, if the issue is
not raised with the trial court initially, it is waived. Commonwealth v.
Sherwood, 982 A.2d 483, 494 (Pa. 2009). To the extent Appellant
challenges the weight of the evidence for his criminal solicitation conviction,
he has waived it because he did not raise the issue before the trial court.
See id. After careful consideration of the facts, as set forth in the trial
court’s decision, we discern no abuse of discretion by the trial court when
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denying his weight claim for his PWID conviction. See Widmer, 744 A.2d at
751-52.
For his seventh issue, Appellant challenges the legality of his sentence.
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 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 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 (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));
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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)(2)(iii)—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.
Appellant lastly challenges the trial court’s reasoning for holding he is
not eligible for a RRRI sentence. He concedes he was convicted of persons
not to possess firearms on April 11, 2012. But Appellant maintains that
conviction post-dated the facts underlying the instant drug convictions and
thus the firearms conviction did not predate his drug offenses. He therefore
reasons that the trial court erred by not classifying his an eligible offender.
We conclude Appellant has not demonstrated entitlement to relief.
As set forth in Commonwealth v. Hansley, 47 A.3d 1180 (Pa. 2012),
“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.” 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).
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The RRRI Act permits offenders who exhibit good behavior
and who complete rehabilitative programs in prison to be
eligible for reduced sentences. The express purpose of the
chapter is:
to create a program that ensures appropriate
punishment for persons who commit crimes,
encourages inmate participation in evidence-based
programs that reduce the risks of future crime and
ensures the openness and accountability of the
criminal justice process while ensuring fairness to
crime victims.
61 Pa.C.S. § 4502. The RRRI Act does not apply to all
defendants, but only to certain “eligible offenders,” a term
that does not include those with a history of violent crime,
convicted of certain sex offenses, or subject to a deadly
weapon enhancement.
Id. at 1186 (citation omitted).
Section 4503 of the RRRI Act defines “eligible offender” in relevant
part as follows:
“Eligible offender.” 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:
* * *
(2) Has not been subject to a sentence the calculation of
which includes an enhancement for the use of a deadly
weapon as defined under law or the sentencing guidelines
promulgated by the Pennsylvania Commission on
Sentencing or the attorney for the Commonwealth has not
demonstrated that the defendant has been found guilty of
or was convicted of an offense involving a deadly weapon
or offense under 18 Pa.C.S. Ch. 61 (relating to firearms
and other dangerous articles) or the equivalent offense
under the laws of the United States or one of its territories
or possessions, another state, the District of Columbia, the
Commonwealth of Puerto Rico or a foreign nation.
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61 Pa.C.S. § 4503 (emphasis added). Section 4505 of the RRRI Act states,
“At the time of sentencing, the court shall make a determination whether the
defendant is an eligible offender.” 61 Pa.C.S. § 4505.
Instantly, Appellant and the Commonwealth agree he was convicted of
a charge under Chapter 61 of the Crimes Code. N.T. Sentencing Hr’g, 4/9 &
10/13, at 75.12 Thus, at the time of sentencing, 61 Pa.C.S. § 4505,
Appellant is not RRRI eligible. See 61 Pa.C.S. § 4503. For these reasons,
we affirm Appellant’s convictions, vacate the judgment of sentence, and
remand for resentencing in light of Mosley, supra.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judge Panella joins the memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2015
12
At the hearing, Appellant’s counsel stated a belief that Appellant was
“made eligible for RRRI on that sentence.” N.T. Sentencing Hr’g, 4/9 &
10/13, at 75.
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COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS
CHESTER COUNTY, PENNSYLVANIA
vs
CRIMINAL ACTION
KHYE RIVAS NO. 1411-11
SUPERIOR CT. NO. 2621 EDA 2013
Nicolas Casenta, Esquire, Attorney for the Commonwealth. f"--.)
·• ~-) r_::..:_::_1
Brenda Jones, Esquire, Attorney for Defendant.
' I
i l I. J
STATEMENT OF THE COURT l ~'
Defendant filed a timely appeal on May 15, 2013, following sent~h~ingj:jn
. '
September 16, 2013. An appeal having been taken, pursuant to Pa.Ft/\)?. 1~5(a),'f1he
following 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 individuals who were involved in this drug trafficking
organization.
Pursuant to the Amended Information, filed September 25, 2012, Defendant was
charged with 23 counts of criminal solicitation, in violation of 18 Pa.C.S.A. § 902;
2 counts of possession with intent to deliver, in violation of 35 Pa.C.S.A. § 780-
113(A)(30); 1 count of dealing in proceeds of unlawful activities, in violation of 18
Pa.C.S.A. § 5111 (a)(1 ); 1 count of corrupt organizations, in violation of 18 Pa.C.S.A. §
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911 (b)(3); 3 counts of criminal use of a communications facility, in violation of 18
Pa.C.S.A. § 7512(a); 2 counts of possession of a controlled substance, in violation of 35
Pa.C.S.A. § 780-113(A)(16); and 1 count of criminal conspiracy, in violation of 18
Pa.C.S.A. § 903(c).
In response to Defendant's Motion to Quash Return of Transcript and/or Petition
for Writ of Habeas Corpus, an Order was entered on September 21, 2012, dismissing six
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: 2 counts of possession with intent to deliver; 2 counts of possession of a controlled
substance; 15 counts of criminal solicitation; 3 counts of criminal use of a
communications facility; 1 count of criminal conspiracy; and 1 count of dealing in
proceeds of unlawful activities. Defendant was found not guilty of one count of criminal
solicitation. Defendant was sentenced on April 10, 2013 to an aggregate term of
imprisonment of 12.25 to 24.5 years.
Defendant filed a Motion for Post Sentence Relief on April 22, 2013. On that same
date, the court entered an order setting forth a briefing schedule. The Commonwealth's
Memorandum of Law was filed on June 4, 2013. Defendant's Brief in Support of Post-
Trial Motion was filed on June 5, 2013. An Order was entered August 19, 2013 denying
Defendant's Post Sentence Motion.
Defendant filed a Notice of Appeal on September 16, 2013. On October 1, 2013,
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. Defendant filed his concise statement on October 22, 2013.
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Defendant alleges eight errors complained of on appeal. This court will address
each issue separately.
Superior Court 's Wiretap Authorizing Orders:
Defendant's first issue raised on appeal is that "[w]iretap evidence was illegally
obtained 1) because it was not supported by probable cause as to Mr. Rivas, 2) because
the Commonwealth failed to show that alternative investigative means had tried and
failed, or would be unsuccessful if tried, and 3) was based on false statements made by
the Commonwealth and it's agents with the Application."
These issues were the subject of a Motion to Suppress that was filed on March 19,
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 10, 2012. In accordance with Pa.RAP. 1925(a),
this court sets forth that the reasons for the denial of Defendant's request for suppression
based on this issue on appeal are found in that Opinion and Order, which are attached
hereto and made a part hereof.
Mistrial:
Defendant's second issue raised on appeal is that the "Court erred in denying
defendant's motion for mistrial after co-defendant Omar Shelton pied guilty during the
trial." We disagree.
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
3
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impartial trial. ill "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." ill
On appeal, the standard of review is whether the trial court abused that discretion
when deciding whether to deny the mistrial. ill "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." ill
This trial started with three co-defendants: Omar Shelton, Jerome Grier and
Defendant. A jury was selected on January 7, 2013. On January 8, 2013, trial
proceedings were delayed because the attorney for Defendant 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
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
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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 Jerome Grier
proceeded with their opening arguments. (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." !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.
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
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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 n" 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.
My point is, though, that my opening remarks have Shelton's
involvement and 184 grams on May 111h 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: To go both ways.
MR. KELLY: Yes.
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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
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
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proceeded against Girard Geho When the jury returned, the trial judge gave
cautionary instructions to the jury "kl 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. kl 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 in the presence of the jury and the jury did not
know that a guilty plea was entered. Based upon the previous delay, the jury could
have easily concluded that Mr. Shelton's removal from the case was related to the car
accident the previous day. 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.
Admission of Evidence:
Defendant's third issue raised on appeal is that the "Court erred in permitting
Trooper Justin Hope to testify about a traffic stop of Christopher Curry and permitting
Trooper Hope to show cocaine to the jury that was possessed by Mr. Curry [Exhibit C-
17]."
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,
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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
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."' kl
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).
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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. Grier. There were thousands of drug
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
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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).
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.
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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).
During the questioning of Trooper Hope about the traffic stop of Mr. Curry and
just prior to the jury momentarily seeing the drugs which were confiscated from Mr.
Curry, that were 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.
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.
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(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 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. 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
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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.
Weight of the Evidence:
Defendant's fourth issue raised on appeal is that the "[c]onviction on the charges
of Possession with Intent to Deliver was against the weight of the evidence in that Mr.
Rivas was not arrested in possession of any controlled substance, and was convicted
based on wiretap recordings only." Defendant's fifth issue raised on appeal is that the
"[s]olicitation convictions were against the weight of the evidence in that no evidence was
offered that the drugs obtained from Mr. DiMatteo were for resale, nor could an inference
be made where amounts [weight of drugs] were not proven."
It must be noted that Defendant's Post-Sentence Motion raised the weight of the
evidence claim regarding the conviction on the charges of Possession with intent to
deliver. However, Defendant's Post-Sentence Motion raised the sufficiency of the
evidence claim regarding the conviction on the charges of solicitation. Defendant did
request the right to supplement the motion after receipt of the transcripts and in his brief
in Support of the Post-Sentence Motion argued that the convictions on both possession
with intent to deliver and solicitation were against the weight of the evidence. The court
examined the weight of the evidence claim on both charges and found the claims to be
without merit.
"A motion for new trial on the grounds that the verdict is contrary to the weight of
the evidence, concedes that there is sufficient evidence to sustain the verdict." Widmer,
744 A.2d 745, 751, citing Commonwealth v. Whiteman, 485 A.2d 459 (Pa.Super. 1984).
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"Thus, the trial court is under no obligation to view the evidence in the light most
favorable to the verdict winner." Widmer, 744 A.2d at 751, citing Tibbs, 457 U.S. at 38, n.
11, 102 S. Ct. 2211. An allegation that the verdict is against the weight of the evidence is
addressed by and at the discretion of the trial court. Widmer, 744 A.2d at 751-752, citing
Commonwealth v. Brown, 648 A.2d 1177 (Pa. 1994).
A new trial should not be granted due to a mere conflict in the testimony or
because the judge on the same facts would have arrived at a different conclusion.
Widmer, 744 A.2d at 752, citing Thompson v. City of Philadelphia, 493 A.2d 669, 673
(Pa. 1985). "A trial judge must do more than reassess the credibility of the witnesses and
allege that he would not have assented to the verdict if he were a juror. Trial judges, in
reviewing a claim that the verdict is against the weight of the evidence do not sit as the
thirteenth juror. Rather, the role of the trial judge is to determine that 'notwithstanding all
the facts, certain facts are so clearly of greater weight that to ignore them or to give them
equal weight with all the facts is to deny justice."' kl
"'[A] new trial should be awarded when the jury's verdict is so contrary to the
evidence as to shock one's sense of justice and the award of a new trial is imperative
so that right may be given another opportunity to prevail."' Commonwealth v. Sullivan,
820 A.2d 795, 806 (Pa.Super. 2003), quoting Commonwealth v. Goodwine, 692 A.2d
233, 236 (Pa.Super. 1997), app. denied, 700 A.2d 438 (Pa. 1997). Stated another way,
the evidence must be "so tenuous, vague and uncertain that the verdict shocks the
conscience of the court."' Sullivan, 820 A.2d at 806, quoting Commonwealth v. La, 640
A.2d 1336, 1351 (Pa.Super. 1994), app. denied, 655 A.2d 986 (Pa. 1994).
In addition, the Pennsylvania Supreme Court has been clear that "'appellate review
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of a weight claim is a review of the exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence."' Sullivan, 820 A.2d at 806,
quoting, Widmer, 744 A.2d at 751-752. "[l]t is the trial court's sense of justice that must
be shocked before a new trial may be granted on a claim that the verdict was against the
weight of the evidence." Sullivan, 820 A.2d at 807, n. 11, citing Commonwealth v. Brown,
648A.2d 1177, 1191 (Pa.1994).
Accordingly, this court applied the above standard when reviewing the evidence
presented at trial. Since Defendant conceded that there was sufficient evidence to
support each material element of possession with intent to deliver and solicitation, we
painstakingly examined the testimony of the numerous witnesses and voluminous
evidence presented to determine if the evidence was so tenuous, vague and uncertain
that the verdict shocks the conscience of the court. After exhaustive review of the
voluminous evidence presented at trial from January 7, 2013 through January 15, 2013,
this court unequivocally determines that that the verdict on the two challenged crimes is
not against the weight of the evidence. We will address each crime separately.
Possession with Intent to Deliver
In his Brief in Support of his Post-Trial Motion, filed June 5, 2013, Defendant
argues that the convictions for possession with intent to deliver were against the weight
of the evidence because the wiretapped recordings of the conversations on April 14,
2010 and May 4 & 5, 2010 fail to confirm that the drugs were delivered by Mr. DiMatteo
to Defendant. An additional factor that he argues to prove that the verdict was against
the weight of the evidence is that he was not in possession of drugs when he was
arrested.
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First, Defendant points to very specific evidence to support his argument.
However, we must examine the evidence as a whole. For example, the conversations
surrounding the April 14, May 4 and May 51h conversations and observational evidence
from pole cameras establish that drugs were delivered to Defendant and that he
intended to deliver them to others. Second, the fact that Defendant did not have drugs
in his possession on the date of his arrest does not negate all the other evidence that
establish these charges.
It is well established that the '"Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, ... the entire record must be evaluated and all
evidence actually received must be considered."' Commonwealth v. Baker, 72 A.3d
652, 658 (Pa.Super. 2013), quoting Commonwealth v. Knox, 50 A.3d 749, 754
(Pa.Super. 2012), appeal granted on other grounds, 68 A.3d 323 (Pa. 2013).
As discussed above, Defendant concedes that there is sufficient evidence to
sustain the verdict. Therefore, Defendant concedes that there was sufficient evidence
that he possessed drugs and had the intent to deliver them to another individual.
Hence, his challenge is that the verdict shocked the conscience of the court because
the specific conversations did not establish delivery and that he was without drugs at
the time of his arrest. This argument is inconsistent with Pennsylvania law that allows
circumstantial evidence to establish the elements of the possession with intent to
deliver offense.
Evidence was presented at trial concerning the large multi-agency investigation
of a drug trafficking ring in Chester County. The investigation included Wiretap
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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. It was co-defendant Mr. DiMatteo's phone on which the wiretap orders
were approved and recorded. 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 from a pole camera that was located
outside Mr. DiMatteo's residence on which the officers observed the arrival and
departure of the many co-defendants. The combination of what the officers heard and
observed resulted in Defendant's arrest as well as the arrest of fifteen other defendants
who were involved in this drug trafficking organization.
At trial, 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.
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
Commonwealth v. Cuevas, 61 A.3d 292 (Pa.Super. 2013); and Commonwealth v. Doyen,
848 A.2d 1007 (Pa.Super. 2004). The expert testimony interpreting the conversations
and the phone calls setting up meeting times for drug or money exchange followed by the
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arrival or departure of Defendant at DiMatteo's house was very compelling
circumstantial evidence of Defendant's possession of drugs with the intent to deliver
them.
The jury's verdict on these charges is not contrary to the evidence as to shock
one's sense of justice. Regarding the April 14, 2010 charge, an intercepted phone call
on that date reveals that Defendant requested an ounce of cocaine from Mr. DiMatteo.
(Exhibit C-36, p. 141 ). A follow up phone conversation between Defendant and
DiMatteo includes Defendant's complaining to DiMatteo that the drugs he received from
him were inferior but that Defendant was still going to sell them. (Exhibit C-36, pgs.
144-146). Taking into account all evidence presented and from these conversations,
the jury could reasonably infer that Defendant received cocaine from DiMatteo on April
14, 2010 and that he planned to distribute it.
Regarding the May 4, 2010 charge, an intercepted phone call on that date has
Defedant asking DiMatteo to put some drugs aside for him. (Exhibit C-36, p. 240). An
intercepted phone call the following day contains complaints from Defendant that the
drugs he received from DiMatteo the prior night were even more inferior than the drugs
previously acquired. (Exhibit C-36, pgs. 249-250). Taking into account all evidence
presented and from these conversations, the jury could reasonably infer that Defendant
received cocaine from DiMatteo on May 4, 2010 and that he planned to distribute it.
Just because drugs were not actually recovered in this case the jury's verdict on
these charges is not contrary to the evidence as to shock one's sense of justice. For
the above listed reasons, Defendant is not entitled to a new trial on the two possession
with intent to deliver charges.
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Solicitation
In his Brief in Support of his Post-Trial Motion, filed June 5, 2013, Defendant
argues that the convictions for solicitation were against the weight of the evidence
because the "purchaser of a controlled substance cannot be charged with solicitation
where the purchaser himself cannot be convicted of delivery or possession with intent
to deliver." (Defendant's Brief in Support of Post-Trial Motion, p. 3.) In support of this
argument, he cites the case of Commonwealth v. Fisher, 627 A.2d 732 (Pa.Super.
1993). This case is distinguishable from the case at hand.
In Fisher the police used a beeper of a known drug dealer and pretended to set
up a drug deal with that defendant. 627 A.2d at 732. When he arrived at the location
to make the purchase he was arrested and charged with solicitation to deliver a
controlled substance. & The court held that 18 Pa.C.S.A. § 904(b) precluded the
conviction because even if the facts were as the customer believed and the drug deal
proceeded as planned, the defendant would only have been guilty of possession and
not delivery due to the small amount of drugs that were solicited in that scenario. & at
733-734.
The facts in the case at hand are very different than those in Fisher. In Fisher,
there was only one phone call to set up the deal and the defendant was arrested upon
arrival at the location to purchase the drugs. 627 at 732. Other than the requested
weight of the drugs, there was no additional evidence to establish the defendant's
intent. In the current case, there was a large amount of evidence at trial that
established Defendant's intent upon acquiring the drugs. As discussed above, there
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were months of recorded phone conversations that reveal that Defendant intended to
resell the cocaine he acquired from DiMatteo. They even discussed Defendant's
customers and the quality of the drugs he received. In addition to the phone
conversations, the police observed Defendant arriving at DiMatteo's at the agreed upon
times in which the drugs were to be exchanged. There was also expert testimony in
this case that established Defendant's actions and intent.
Therefore, Defendant's argument that the convictions for solicitation were
against the weight of the evidence is without merit.
Sufficiency of the Evidence:
Defendant's fifth issue raised on appeal is that the "[e]vidence for dealing in
proceeds of unlawful activities, 18 Pa.C.S.A. 5111, was insufficient as a matter of law to
establish the defendant's guilt beyond a reasonable doubt in that evidence was not
produced that showed a financial transaction occurred with knowledge that the property
involved represents the proceeds of unlawful activity, and that Mr. Rivas acted with the
intent to promote the carrying on of the unlawful activity." We disagree.
The standard for reviewing the sufficiency of the evidence is "whether the
evidence, viewed in the light most favorable to the Commonwealth as verdict winner, is
sufficient to enable the fact-finder to find every element of the crime beyond a
reasonable doubt." Commonwealth v. Matthew, 909 A.2d 1254, 1256-57 (Pa. 2006),
citing Commonwealth v. Williams, 896 A.2d 523, 535 (Pa. 2006), cert. denied, 127 S.Ct.
1253 (2007), and Commonwealth v. Randolph, 873 A.2d 1277, 1281 (Pa. 2005).
In addition, all reasonable inferences drawn from the evidence must be viewed in
the light most favorable to the Commonwealth. Commonwealth v. McCollum, 926 A.2d
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527, 530 (Pa.Super. 2007), quoting Commonwealth v. Earnest, 563 A.2d 158, 159
(Pa.Super. 1989). "The test is whether the evidence, thus viewed, is sufficient to prove
guilt beyond a reasonable doubt." McCollum, 926 A.2d at 530, citing Commonwealth v.
Swerdlow, 636 A.2d 1173 (Pa.Super. 1994). "'This standard is equally applicable to
cases where the evidence is circumstantial rather than direct so long as the
combination of the evidence links the accused to the crime beyond a reasonable
doubt."' McCollum, 926 A.2d at 530, quoting Swerdlow, 636 A.2d at 1176.
A conviction must be based on more than mere suspicion or conjecture,
however, the Commonwealth does not need to establish guilt to a mathematical
certainty. McCollum, 926 A.2d at 530, quoting Commonwealth v. Badman, 580 A.2d
1367, 1372 (Pa.Super. 1990). "Moreover, the facts and circumstances established by
the Commonwealth need not preclude every possibility of innocence." Commonwealth
v. Marrero, 914 A.2d 870, 872 (Pa.Super. 2006), citing Commonwealth v. Bullick, 830
A.2d 998, 1000 (Pa.Super. 2003).
The court may not weigh the evidence and substitute its judgment for the fact-
finder. !!!. "Any doubts regarding a defendant's guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that as a matter of law no probability
of fact may be drawn from the combined circumstances." Marrero, 914 A.2d at 872,
citing Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super. 2001), app. denied,
806 A.2d 858 (Pa. 2002). When evaluating the credibility of the witnesses and
evidence as well as the weight of the evidence, the fact-finder is free to believe all, part,
or none of the evidence presented. Commonwealth v. Faulk, 928 A.2d 1061, 1069
(Pa.Super. 2007), quoting Commonwealth v. Stevenson, 894 A.2d 759, 773 (Pa.Super.
22
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2006), app. denied, 917 A.2d 846 (Pa. 2007).
The uncorroborated testimony of one victim, if believed by the trier of fact, is
sufficient to convict a defendant, if all the elements of a crime are established beyond a
reasonable doubt. Commonwealth v. Mack, 850 A.2d 690, 693 (Pa.Super. 2004), citing
Commonwealth v. Davis, 650 A.2d 452, 455 (Pa.Super. 1994), app. granted, 659 A.2d
557, affirmed, 674 A.2d 214 (Pa. 1996).
An individual violates the statute of Dealing in Proceeds of an Unlawful Activity
if he conducts a financial transaction "with knowledge that the property involved,
including stolen or illegally obtained property, represents the proceeds of unlawful
activity, the person acts with the intent to promote the carrying on of the unlawful
activity." 18 Pa.C.S.A. § 5111 (a)(1 ).
The evidence, taken in the light most favorable to the Commonwealth, shows that
Defendant was involved in a drug trafficking organization over a period of months in 2010.
As discussed above, he solicited drugs from Mr. DiMatteo to sell to others. They
discussed the price and quantity of drugs needed, Defendant's drug customers and on
two occasions they even discussed the poor quality of the drugs purchased by
Defendant. From all the evidence set forth at trial, the jury could reasonably infer that at
least a portion of the money he collected from selling the drugs he obtained from
DiMatteo was then paid back to DiMatteo to obtain the next batch of drugs to sell.
There was sufficient evidence that Defendant knew that the money he obtained
from selling the illegal drugs were proceeds of that unlawful activity and that he intended
to promote the carrying on of the illegal drug selling activity by continuing to purchase
more drugs to sell to his customers. Accordingly, Defendant's issue on appeal is without
23
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merit.
Mandatory Sentence:
Defendant's fifth issue raised on appeal is that his "mandatory sentence for PWID
[April 14, 201 O], pursuant to 18 Pa. C.S. § 7508, Drug trafficking sentencing and
penalties, should be vacated because facts that increased his sentence, in this case, the
weight of the cocaine, are an element that should have been submitted to the Jury and
found beyond a reasonable doubt. Alleyne vs. U.S., 457 Fed. Appx. 348." We believe
that Defendant's citation to this 4th Circuit United States Court of Appeals case is
incorrect. We believe that Defendant is setting forth a proposition that was addressed
by the United States Supreme Court in Alleyne v. United States, 133 S.Ct. 2151 (2013).
The Alleyne court held that "[a]ny fact that, by law, increases the penalty for a
crime is an 'element' that must be submitted to the jury and found beyond a reasonable
doubt. ... Mandatory minimum sentences increase the penalty for a crime. It follows,
then, that any fact that increases the mandatory minimum is an 'element' that must be
submitted to the jury." 133 S.Ct. at 2155.
In Commonwealth v. Watley, the Pennsylvania Superior Court held that 18
Pa.C.S.A. § 7508(b) is unconstitutional because it does not conform to Alleyne and
allows mandatory minimum sentencing factors to be decided by a judge at sentencing
rather than being submitted to a jury to be found beyond a reasonable doubt. --- A.3d --
-, 2013 WL 6164340, 7-8 (Pa.Super. 2013).
Defendant was sentenced on April 10, 2013. The United States Supreme Court
decided Alleyne on June 17, 2013 and the Pennsylvania Superior Court decided Watley
on November 25, 2013. Therefore, this court sentenced Defendant prior to the Alleyne
24
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mandates and prior to Watley holding 18 Pa.C.S.A. § 7508(b) to be unconstitutional.
The court followed the direction of 18 Pa.C.S.A. § 7508(b) and considered evidence
presented at trial as well as additional evidence set forth at the sentencing hearing to
determine, by a preponderance of the evidence, that the mandatory minimum drug
trafficking sentence was applicable to Defendant's possession with intent to deliver
conviction.
"Ordinarily, new rulings pertaining to cases on direct appeal are entitled to
retroactive effect so long as the applicable issue is preserved." Watley, 2013 WL
6164340 at 7. Defendant has preserved this issue on appeal and the Alleyne and
Watley mandates should be applied retroactively to Defendant's sentence. Therefore,
this case should be remanded for resentencing.
Recidivism Risk Reduction Initiative:
Defendant's eighth issue raised on appeal is that "[t]he Defendant is an 'eligible
offender' under the provisions of the Recidivism Risk Reduction Initiative [RRRI] and his
sentence should be modified and reduced in conformance with the RRRI program."
We disagree.
Pursuant to 61 Pa.C.S.A. § 4503, an eligible offender for the Recidivism Risk
Reduction Initiative is "[a) defendant or inmate convicted of a criminal offense who will
be committed to the custody of the department and who ... [h]as not been ... found
guilty of or was convicted of an offense ... under 18 Pa.C.S. Ch. 61 (relating to firearms
and other dangerous articles) .... " In 2012 under docket number 444-11, Defendant
was previously found guilty and sentenced for the crime of persons not to possession
firearms in violation of 18 Pa.C.S.A. § 6105.
25
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This previous conviction results in Defendant being an ineligible offender for the
Recidivism Risk Reduction Initiative and it was proper for the court to not grant
Defendant's request for RRRI. Accordingly, Defendant's issue on appeal is without
merit.
26
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COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
CHESTER COUNTY, PENNSYLVANIA
vs
CRIMINAL ACTION
KHYE RIVAS
DEFENDANT N0.1411-11
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Brenda Jones, Esquire, on behalf of Defendant. _,_.. .•
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On February 14, 2012, Defendant filed a Motion to Suppress·Wir.etarwf:vidence
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and all Derivative Evidence as Fruit of the Poisonous Tree. A hearing was held on
March 19, 2012. The Commonwealth's Memorandum of Law was filed April 12, 2012
and Defendant's Memorandum of Law was filed June 26, 2012.
Defendant requests suppression of any and all intercepted communications
obtained through illegal surveillance captured via electronic monitoring of the phones of
DiMatteo and requests suppression of any derivative evidence as fruit of the poisonous
tree.
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 electronic
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
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the request and on March 19, 2010 executed an Order Authorizing the Interception of
Electronic and Wire Communications.
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 Process 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
2
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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 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.
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(4) The interception materially deviated from the requirements of the order
of authorization.
(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
alleges that the Order of Authorization was not supported by probable cause. Second,
4
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he argues 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. He alleges that the affiants spoke falsely or with
reckless disregard for the truth when they stated that the four individuals listed were the
targets of the wiretap, when in reality the only target was Rodriguez-Cruz.
Defendant further argues that the Commonwealth is unable to show that normal
investigative procedures had been tried or would fail and that the Commonwealth
violated 18 Pa.C.S.A. § 5721 (b) by continuing the wiretaps longer than necessary to
achieve the objective. He argues that the Commonwealth exceeded the scope of the
April 20, 2010 Extension Order by listening to calls on/to cell number 215-239-0542
when it was no longer being used by DiMatteo. Therefore, all interceptions made from
May 12, 2010 to May 18, 2010 purported to be from/to Defendant should be
suppressed.
We shall address each of Defendant's arguments. This court dtsaqrees 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.
5
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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
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
6
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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." ~
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 argues
that there are two things in the affidavits that are false. First, that it is false when the
affiants claimed that normal investigative techniques had been tried and/or would not
work against the targets. Second, Defendant alleges that it is false when the affiants
claimed that there was four targets of the wire when the true and sole target of the
investigation and wire was Rodriguez-Cruz. Defendant's claims are inaccurate.
Regarding Defendant's claim that affiants falsely set forth that normal
investigative techniques had been tried and/or would not work against the targets is
misleading. What the affiants actually set forth in their affidavits were exactly what
normal investigative techniques were tried and how the wiretap for the interception of
electronic and wire communication would be needed to investigate and lead to the
source or sources of the cocaine that the drug organization was distributing.
Specifically, the affiants set forth their use of confidential informants, visual surveillance,
analysis of data from toll records, call detail records, pen registrars, and trap and trace
device techniques.
Defendant has been unable to make a substantial preliminary showing that the
following conclusion drawn by the affiants was false:
Based on your affiants' experience, it is believed that the investigation of
Phillip DiMateo indicates that he and others as yet unknown are involved
in the distribution of cocaine in and around Philadelphia and Chester
Counties in Pennsylvania. Although law enforcement has employed many
of the usual investigative approaches that are normally utilized in cases of
this type, those techniques have not been successful in producing specific
7
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information regarding the extent of DiMatteo's drug trafficking, the identity
and location of his source(s) of supply of cocaine, or the manner in which
the illegal operation is conducted. Your affiants, and others who have
been involved in similar investigations of this type of high level drug
trafficking, have experienced difficulty in using normal investigative
methods due to the inherent clandestine nature of such activity and the
awareness on the part of the suspects of drug enforcement techniques. In
addition, these clandestine operations frequently utilize several bases of
operation. These locations in the present investigation are as yet
unknown. The dates, times, and place of drug transactions, as well as
other information concerning the ongoing criminal conspiracy, the object of
which is the multi-county distribution and possession of controlled
substances, can be ascertained and presented as evidence sufficient to
convict the participants only by monitoring telephone conversations
between these participants.
This court also disagrees with Defendant's claim that affiants falsely set forth that
there were four targets of the wire when the true and sole target of the investigation
and wire was Rodriguez-Cruz. Defendant's argument is based on a question presented
to one of the affiants at Dimatteo's preliminary hearing. Trooper Fallon stated that
Rodriquez-Cruz was the reason and purpose as to why law enforcement sought the
wiretap for Dimatteo's phone.
This testimony must be viewed in conjunction with the warrant affidavit. There
are overwhelming averments by the three affiants, not just Trooper Fallon, that the
investigation was focused on the entire Rodriguez-Cruz Drug Trafficking Organization.
The affidavit methodically goes through all of the actions of individuals involved and
details the information compiled against the known players in this drug business. It is
abundantly clear that the focus of the investigation was to gather evidence against not
only the individuals to whom the drugs were being distributed but also to find the source
of the drugs that Dimatteo and the co-defendants obtained. Therefore, this court does
not find that the affiants falsely set forth the targets of the investigation in the affidavit.
8
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Defendant has failed to make a substantial preliminary showing that a false
statement knowingly and intentionally, or with reckless disregard for the truth, was
included by the affiants in the warrant affidavit. Accordingly, Defendant is not entitled
to a Franks hearing.
Defendant's final argument is that the Commonwealth violated 18 Pa.C.S.A. §
5721 (b) by continuing the wiretaps longer than necessary to achieve objective. He
argues that the Commonwealth exceeded the scope of the April 20, 2010 Extension
Order by listening to calls on/to cell number 215-239-0542 when it was no longer being
used by DiMatteo. He requests that all interceptions made from May 12, 201 O to May
18, 2010 purported to be from/to Defendant should be suppressed.
It is apparent to this court that the wiretap was not continued longer than
necessary to achieve the objective of identifying the source(s) of the drugs as well as all
the individuals to whom the drugs were distributed or the full extent of the method of
operations. As the final reports establish, while the wiretaps gathered information and
helped identify some of the players involved, there were still many unknown individuals
yet to be identified that were involved with this drug operation. Therefore, this argument
must fail.
Pursuant to 18 Pa.C.S.A. § 5721.1 (b)(4), a party may move to exclude the
contents of any wire, electronic or oral communication, or evidence derived therefrom, if
the interception materially deviated from the requirements of the order of authorization.
Thus, the April 20, 2010 Extension Order must be examined in its entirety to determine
if the Commonwealth exceeded the scope of the order by listening to calls on/to cell
number 215-239-0542 when it was no longer being used by DiMatteo.
9
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Paragraph one of the order states as follows:
Intercept electronic and wire communications (including background
conversations in the vicinity of the subject telephone while the telephone is
off the hook or otherwise in use) including all Text Messaging
communications, and the content thereof, (Short Message Service (SMS))
of Phillip DiMatteo, who utilizes Sprint Nextel Corporation telephone
number 215-239-0542 and Nextel Direct Connect number 168*651*3330
and others known and yet unknown (including background conversations
in the vicinity of the subject telephone while the telephone is off the hook
or otherwise in use) and including all Text Messaging communications and
content thereof ....
Paragraph three of the order states that interception "shall continue until
communications are intercepted which reveal the complete manner in which Philip
DiMatteo and possibly others known and as yet unknown, participate in the illegal drug
distribution enterprise .... " The order later states that "Sprint Nextel Corporation make
available and provide to investigators all direct connect and text messaging to and from
Phillip DiMatteo, who utilizes Sprint Nextel Corporation telephone number 215-239-
0542 and Nextel Direct Connect number 168*651*3330 (IMSI number
316010158942635)."
This court has determined that the Commonwealth did not exceed the scope of
the April 20, 2010 Extension Order by listening to a limited number of calls on/to cell
number 215-239-0542 when in the possession of Mr. Carter, who continued to use the
phone to conduct the business of the drug operation and continued to speak to
Defendant on that phone. Therefore, Defendant's argument is denied.
10
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Based upon the foregoing, the following Order is entered:
ORDER
AND NOW, this __ lO
__ day of October, 2012, upon consideration of
Defendant's Motion to Suppress the Contents of any Electronic Surveillance, filed July
18, 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 27, 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.
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