Com. v. Botch, C. ( 2023 )

J-A09032-22
NON-PREDEDENTIAL DECISION – SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CHESTER BOTCH : No. 1136 EDA 2021
Appeal from the Order Entered May 5, 2021
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0001743-2019
BEFORE: NICHOLS, J., SULLIVAN, J., and PELLEGRINI, J.*
DISSENTING MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 15, 2023
The issue in this appeal is whether the Court of Common Pleas of Monroe
County (trial court) erred in granting Chester Botch’s (Botch) motion to
suppress recordings made at the behest of the Commonwealth by a prison
inmate, Jonathan Geltz (Geltz), violated Botch’s Sixth Amendment right to
counsel because Geltz recorded statements while Botch was represented. The
Sixth Amendment1 right to counsel is offense-specific and, therefore, does not
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* Retired Senior Judge assigned to the Superior Court.
1 The Sixth Amendment provides, in pertinent part, that “[i]n all criminal
prosecutions, the accused shall enjoy the right ... to have the Assistance of
Counsel for his defen[s]e.” U.S.C.A. Const. Amend. 6. This right “is offense
specific. It cannot be invoked once for all future prosecutions, for it does not
attach until a prosecution is commenced, that is, at or after the initiation of
adversary judicial criminal proceedings—whether by way of formal charge,
(Footnote Continued Next Page)
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prevent a suspect from being questioned about an unrelated case. I
respectfully dissent because, unlike the majority, I would hold the suppressed
recordings were related to offenses that had already been charged and would
affirm the trial court.
I.
A.
Because the majority set forth in its opinion the factual background,
only a short summary of the pertinent facts is needed. When the recordings
were made, Botch was in prison for charges filed on October 31, 2018, at case
number 2875 Criminal 2018 (2018 Case) and was charged with two counts of
Possession with Intent to Deliver (PWID)2 (heroin and Alprazolam3) and
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preliminary hearing, indictment, information, or arraignment.” Texas v.
Cobb, 532 U.S. 162, 167-68 (2001) (citation omitted). “The right to counsel
guaranteed by Article I, Section 9 of the Pennsylvania Constitution, is
coterminous with the Sixth Amendment right to counsel for purposes of
determining when the right attaches.” Commonwealth v. Gwynn, 943 A.2d
940, 947-948 (Pa. 2008). Therefore, the state constitutional right to counsel
attaches at the same time the Sixth Amendment right to counsel attaches,
i.e., “‘the initiation of adversary judicial proceedings,” which is generally
arraignment. Id. at 948. Statements made to an informant while
incarcerated on different charges does not violate a defendant’s right to
counsel. See Commonwealth v. Bomar, 826 A.2d 831, 844 (Pa. 2003).
2 35 Pa.C.S. § 780-113(a)(3).
3 Alprazolam is Xanax.
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related possession charges4 based on the drugs and paraphernalia found in
his home on October 24, 2018. (See 2018 Case Police Criminal Complaint
and Affidavit of Probable Cause, 10/31/18, at 3-4). Those charges were
instituted when the police were summoned to Botch’s home because Thomas
Bartkovsky (the Victim) was hanging by a rope in Botch’s garage. After
obtaining a search warrant, drugs were found and the above charges were
filed. Botch had counsel relating to those charges. The investigation
continued into the circumstance of the Victim’s death.
Regarding that investigation, the police met Geltz, an inmate housed
with Botch, who volunteered that Botch admitted that the Victim overdosed
on heroin he had given him. After discussions with the police, Geltz agreed
to wear a wire and after a court order approving the intercept, the police
provided Geltz with a recording device which recorded six relevant segments
in which Geltz guided Botch to talk about the Victim’s death. Among other
statements, Botch told Geltz he gave the Victim a brick of heroin and the
Victim overdosed before Botch “strung him up in his garage” with a rope.
(2019 Affidavit of Probable Cause, at 12).
As a result of that investigation, on June 7, 2019, a criminal complaint
and affidavit of probable cause were filed against Botch at case number 1743
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4 The related charges included Conspiracy to Commit PWID, three counts of
Possession of Drugs (heroin, alprazolam and buprenorphine) and two counts
of Possession of Drug Paraphernalia.
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Criminal 2019 (2019 Case), the case on appeal. It contained new charges of
Drug Delivery Resulting in Death (DDRD), Criminal Use of a Communication
Facility, Abuse of Corpse, Tampering with Evidence and Criminal Conspiracy,
as well as the old 2018 charges of PWID, Possession of a Controlled Substance
and Possession of Drug Paraphernalia. (See 2019 Police Criminal Complaint
and Affidavit of Probable Cause, 6/07/19, at 3-6). The information identified
the drugs involved in the PWID as heroin and Alprazolam. (See Information,
8/27/19, at 1). The 2019 affidavit of probable cause contained the same
information related to the PWID drug charges, as well as information about
the new DDRD related charges.
At the July 11, 2019 preliminary hearing, Detective Venneman
confirmed that there was nothing new in the 2019 complaint “drugwise.” (See
N.T. Preliminary Hearing, at 33). On September 16, 2019, the Commonwealth
filed a petition to nolle pros the charges in the 2018 Case on the basis that
both PWID and additional charges had been filed in the 2019 Case “arising out
of substantially similar facts and circumstances” and that Botch had been
arraigned on the 2019 Case. (Commonwealth’s Petition for Nol Pros, Docket
No. 2575 Criminal 2018, 9/16/19, at ¶ 2).
B.
Botch then filed a motion to suppress as part of his omnibus pretrial
motion in which he argued that the six individual segments which Geltz
induced Botch to talk about the Victim’s death violated, among other reasons,
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that because the recordings involved matters with which he was already
charged, that his Sixth Amendment right to counsel was violated. At the
conclusion of the hearing, the trial court granted the motion to suppress the
recordings on the record based on the violation of Botch’s Sixth Amendment
right to counsel. It explained, in pertinent part, that:
In this case, the fundamental problem with the
Commonwealth’s argument is that there is no separation between
… the original charges … and the … new charges. … Given that,
the Commonwealth has not argued or even attempted to argue
that there is any basis … for holding that the right to counsel did
not attach at least as to those charges or how evidence of those
charges could come into this trial when you have both old and new
that will be heard at the same trial ….
* * *
… [A]fter this case was filed, [] the Petition to Nolle Pros, …
subparagraph A of Paragraph 2 lists all the charges that were
originally filed in the 2018 case itself. Subparagraph B says that
the above-referenced charges have also been filed and are
included in … this case. In addition, … the detective who testified
at the preliminary hearing in this case was specifically asked if
there are any difference[s] in the drug charges, and his response
was no. And now … there appears to be no issue with respect to
the fact that at least Mr. Geltz is indicating that [Botch] told him
that the drugs … were the same.
So for Sixth Amendment purposes, I cannot accept and do not
find that the possessory drug crimes that are pled in this case are
new, distinct, or separate or in any way different from the crimes
originally pled in 2018. To be certain, Drug Delivery Resulting in
Death, Tampering with Evidence, Abuse of Corpse, and Criminal
Use of a Communication Facility are new crimes. However, again,
if this was two different trials, I don’t think there would be an
issue, but it’s not. This is brought together in one information,
and it’s going to head towards one trial, and I think that you can’t
separate out the fact that there was a violation of the Sixth
Amendment right to counsel as to some but not all of the …
charges that have been filed and then somehow try to ask the jury
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to consider the evidence as to the quote/unquote new charges but
not the old.
* * *
However, I want to make clear … I perceive the Motion to
Suppress as seeking only suppression of the recorded statements
intercepted by Mr. Geltz. The record demonstrates that there
were statements made to Mr. Geltz [and other inmates] by
[Botch] … that were not recorded[.] … and I’m going to specifically
indicate that my ruling is only with respect to the statements …
that were recorded by Mr. Geltz after he was sent back in wearing
a wire.
(N.T. Hearing, 5/04/21, at 47, 53-56); (see also Trial Ct. Op., at 8).
The majority reverses the trial court because PWID charges originally
filed in 2018 and refiled in 2019 do not constitute the same offense and Botch’s
right to counsel was not violated. It reasons that those crimes are unrelated
because, “while it is unclear from a procedural perspective exactly why the
Commonwealth elected to file the DDRD charge in the 2019 complaint along
with re-charging the PWID charges originally charged in the 2018 complaint,
this perplexing decision does not change the uncontroverted facts of record
that: (1) the 2018 complaint charged two counts of PWID specifically related
to the drugs and drug paraphernalia found at the home pursuant to the
October 24, 2018 search warrant; (2) Geltz obtained the consensually
intercepted statements in January and February 2019 and Botch’s statements
only related to the death of Bartkovsky; (3) law enforcement did not
encourage Geltz to discuss the PWID charges in the 2018 complaint; and (4)
the separate crime of DDRD remained uncharged until June 7, 2019.”
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Like the trial court, I disagree with the majority that Botch’s Sixth
Amendment right to counsel was not violated because the Commonwealth
brought all the PWID and DDRD charges together in one information, the
charges are going to be tried together, and the evidence needed to establish
the DDRD charge overlaps with the evidence and cannot be separated from
proving the PWID charges. Let me more fully explain.
II.
A.
“Any statement made by the individual . . . which is deliberately elicited
by police, without the individual making a valid waiver of the right to counsel,
is deemed a contravention of this right. A statement may be deliberately
elicited by police through use of an informant.”5 Commonwealth v.
Hannibal, 156 A.3d 197, 212–13 (Pa. 2016), cert. denied, 138 S.Ct. 59
(2017) (citations and most quotation marks omitted).6 However, “a
defendant’s statements regarding offenses for which he has not been charged
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5 The Commonwealth does not contest that Geltz was acting as its agent at
the time he elicited and recorded the subject statements.
6 It is well-settled that “[a] voluntary jailhouse admission made to a fellow
inmate is not subject to any more protection than a confession made by the
defendant outside of his jail cell to another person willing to notify authorities.”
Commonwealth v. Ogrod, 839 A.2d 294, 329 (Pa. 2003). Botch did not
move to suppress the unrecorded statements he voluntarily made to Geltz or
the other two jailhouse informants, and the court limited its holding to only
the recorded statements made to Geltz at his encouragement.
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are admissible notwithstanding the attachment of his Sixth Amendment right
to counsel on other charged offenses.” McNeil v. Wisconsin, 501 U.S. 171,
176 (1991).
“Although it is clear that the Sixth Amendment right to counsel attaches
only to charged offenses, we have recognized in other contexts that the
definition of an ‘offense’ is not necessarily limited to the four corners of a
charging instrument.” Texas v. Cobb at 172-73 (2001), (citing Blockburger
v. United States, 284 U.S. 299, 304 (1932)). “[W]hen the Sixth Amendment
right to counsel attaches, it does encompass offenses that, even if not formally
charged, would be considered the same offense under the Blockburger
test[,]” which provides that “where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not.” Id. at 173;
Blackburger, supra at 304. “In this sense, we could just as easily describe
the Sixth Amendment as ‘prosecution specific’ insofar as it prevents discussion
of charged offenses as well as offenses that, under Blockburger, could not
be the subject of a later prosecution.” Cobb, supra at 173 n.3
B.
The issue in this case then is whether the PWID charges originally filed
in 2018 and refiled in 2019 require a proof of a fact involved in the DDRD
charge so that Botch’s right to counsel attached for both the PWID charges
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and the DDRD charge when the recordings were obtained. The
Commonwealth contends that the offenses are unrelated because:
Botch’s possession of the controlled substances actually found in
his residence consistent with distribution on October 24, 2018,
and charged in the October 2018 Complaint and the actual
delivery of controlled substances to the Victim resulting in his
death prior to that time were distinct criminal violations. Utilizing
the Blockburger rationale in the Cobb framework as applied to
the case at bar, [Botch]’s Sixth Amendment right to counsel would
not have attached regarding the [DDRD] offense and, as such, the
trial court’s order suppressing the recorded statements should be
reversed.
(Commonwealth’s Brief, at 7-8). The Commonwealth’s attempt to separate
his 2018 PWID charge from the 2019 DDRD7 is not persuasive.
PWID is defined as:
the manufacture, delivery, or possession with intent to
manufacture or deliver a controlled substance by a person not
registered under this act, or a practitioner not registered or
licensed by the appropriate State board, or knowingly creating,
delivering or possessing with intent to deliver, a counterfeit
controlled substance.
36 P.S. § 780-113(a)(30).
DDRD is defined as:
A person commits [DDRD,] a felony of the first degree[,] if the
person intentionally administers, dispenses, delivers, gives,
prescribes, sells or distributes any controlled substance or
counterfeit controlled substance in violation of section 13(a)(14)
or (30) of [The Drug Act] , and another person dies as a result of
using the substance.
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7 Although Botch was charged with multiple crimes, including PWID, the
Commonwealth only focuses its argument on the DDRD charge.
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As can be seen, the charge of DDRD includes the same evidence as the
PWID, since DDRD is essentially PWID where “another person dies as a result
of using the substance.” 18 Pa. C.S. § 2506(a). DDRD does not require
additional scienter and automatically applies if a death occurs.
C.
In 2018, Botch was charged with PWID of heroin and prescription
medications. (See 2018 Criminal Complaint, at 3). In 2019, he was charged
with DDRD for PWID of heroin and Alprazolam. (See 2019 Criminal
Complaint, at 3); (Information, 8/27/19, at 1). Detective Venneman testified
that in Geltz’s de-briefing, the informant advised that Botch told him that he
gave the Victim drugs from his stash of baggies labeled “Death Row” which
lab testing results showed was heroin and Alprazolam, before hanging him to
make his death look like a suicide. (See N.T. Suppression Hearing, at 38-42).
Botch’s possession and delivery of drugs labeled “Death Row” was the basis
for both complaints in the PWID and DDRD charges.
Consequently, the informant’s recorded questioning of Botch about the
facts of the new, unindicted DDRD charge necessarily involved incriminating
statements and questions about the heroin and Alprazolam that formed the
basis of the indicted PWID charge. In other words, the DDRD and PWID
charges were, for all practical purposes, the same charges with the same
evidence, other than the undisputed fact that the Victim died as a result of
the delivery. If Botch was acquitted of either charge, under Blockburger and
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Cobb, he could not be acquitted of the other charge or, for that matter, be
the subject of a later prosecution.
D.
Further, we are not persuaded by the Commonwealth’s argument that
Botch’s recorded admissions pertained to different drugs than those
underlying his PWID charge because there is reference to a “hot shot” and
additional drugs were found in the Victim’s body. Although the
Commonwealth attempts to draw a distinction because there were other drugs
found in the Victim’s body, the fact remains that Alprazolam was one of those
drugs. (See Autopsy Report, at 1). Moreover, although there was testimony
that Botch said he gave the Victim a “hot shot,” it is not clear from the record
provided to this Court exactly what this referred to and does not negate the
fact that the Commonwealth’s questioning of Botch about the “Death Row”
(heroin and Alprazolam) drugs that formed the basis of both complaints
violated his right to an attorney. We also note that Detective Venneman
stated at the preliminary hearing that there was nothing new in the 2019
complaint “drugwise” and the Commonwealth’s petition to nolle pros the 2018
Case stated that the 2019 Case “[arose] out of substantially similar facts and
circumstances,” and that it did not argue at the suppression hearing that there
was any separation between the 2018 and 2019 PWID charges.
Accordingly, for the forgoing reasons, I respectfully dissent.
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