Com. v. Botch, C.

J-A09032-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37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.*
MEMORANDUM BY SULLIVAN, J.: FILED AUGUST 15, 2023
The Commonwealth appeals from the order granting the pre-trial motion
to suppress recordings filed by Chester Botch (“Botch”).1 After careful review,
we reverse.
In large part the parties do not dispute the facts of this case; their
disagreement lies in the application of the law to those facts. The largely-
undisputed facts are as follows. On October 24, 2018, police responded to a
report of a hanging death at Botch’s house on Beartown Road in Canadensis.
See N.T., 7/2/20, at 22. The responding officers saw a man later identified
as Thomas Bartkovsky (“Bartkovsky”) hanging from a rope in the garage,
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* Retired Senior Judge assigned to the Superior Court.
1 See Pa.R.A.P. 311(d).
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dead from what appeared to be a suicide. See id. at 23. Responding officers,
including Detective Ryan Venneman (“Detective Venneman”), also observed
in plain view what appeared to be narcotics and drug paraphernalia
throughout the house. See id. Officers secured the scene, and obtained a
search warrant, and in the subsequent search conducted that same day
recovered several packets of drugs2 and paraphernalia and other items
consistent with drug dealing, namely an “owe sheet” and several baggies in
safes in Botch’s bedroom. See id. at 23, 32-33, 64-65.
Based on previous experience, Detective Venneman, the affiant in this
matter, testified that Bartkovsky’s death looked suspicious. See id. at 23-29.
Following the search that day, Detective Venneman interviewed Botch. At the
conclusion of the interview also on October 24, 2018, the police took Botch
into custody for a probation violation and incarcerated him at the Monroe
County Correctional Facility (the “MCCF”). See id. at 45-52, 83.
On October 31, 2018, police arrested and charged Botch with two counts
of possessing a controlled substance with intent to deliver (“PWID”),
conspiracy, and other offenses3 relating solely to the drugs recovered in his
house pursuant to the search warrant on October 24, 2018, and he remained
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2 Testing identified those drugs as alprazolam heroin (in trace amounts), and
N-ethylepentylone,. See N.T., 7/2/20, at 63-65.
3 See 35 P.S. § 780-113(a)(16), (30), (32); 18 Pa.C.S.A. § 903.
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at the MCCF. See id. at 51-52; N.T., 5/4/21, at 13; see also Complaint,
10/31/18 (the “2018 Complaint”).
In the weeks after the filing of the 2018 Complaint charging Botch with
PWID and related offenses for the drugs found in his home, police conducted
an investigation into Bartkovsky’s suspicious death. The investigation
included several witness interviews, an autopsy, which included toxicology
testing to determine what, if any, drugs Bartkovsky had in his system when
he died. See N.T., 7/2/20, at 28-37.4 On November 1, 2018, police
interviewed Bartkovsky’s girlfriend, who stated that Bartkovsky hanged
himself on the afternoon of October 23, 2018, the day before police were
called to the scene. On December 4, 2018, police interviewed Botch’s ex-
girlfriend who stated that on the day before police were called, Botch told her
Bartkovsky was hanging in the garage and Botch later stated to her that he
and others hung Bartkovsky. See id. at 33-36, 77-78, 89-91; see also
Affidavit of Probable Cause, 6/7/19, at 10. Several confidential informants
(“CI”s) contacted the police to discuss what Botch had disclosed to them about
Bartkovsky’s death. See N.T., 7/2/20, at 37-42. One CI, Jonathan Geltz,
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4 Testing revealed that Bartkovsky had alprazolam, methamphetamine,
tramadol, fentanyl, norfentanyl, and metabolites of cocaine and heroin in his
system when he died; his death certificate listed “mixed substance toxicity”
as the cause of his death. See N.T., 7/2/20, at 29, 59-63.
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who shared a prison cell with Botch at MCCF,5 told police he wanted to discuss
what Botch had told him about Bartkovsky’s death. See id. at 38.
On December 18, 2018, Monroe Country First Assistant District Attorney
Michael Mancuso, Detective Venneman, and Detective Michael Kreischer took
Geltz’s statement. See id. at 38. Geltz said that Botch had described
Bartkovsky’s overdose and death and admitted he gave Bartkovsky a “hot
shot” injection on the night he died and hanged his body to make Bartkovsky’s
death look like a suicide. See id. at 38-39; see also Geltz Statement,
12/18/18, 8-11. Two other informants also told the police that Botch said he
gave Bartkovsky a shot with different drugs that killed him. See N.T., 7/2/20,
39-42.
In January and February 2019, Geltz wore a consensual wire to record
conversations with Botch while they were incarcerated together at the MCCF,
resulting in approximately forty hours of wiretap recordings over the course
of multiple days. See Consensual Calls, N.T., 7/2/20, at 19-20, Exhibit 1.
Only a small percentage of the recordings contains conversation between
Botch and Geltz. See N.T., 7/2/20, at 19-20, 27, 102.
On June 7, 2019, at the conclusion of the police investigation of
Bartkovsky’s death, the Commonwealth filed a complaint (the “2019
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5 Geltz met Botch for the first time at the MCCF on or about October 24, 2018.
See Statement of Jonathan Geltz (“Geltz Statement”), 12/18/18, at 2-3.
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Complaint”) alleging that Botch gave Bartkovsky drugs that resulted in his
death and attempted to cover up the overdose death by hanging his body.
The 2019 Complaint charged drug delivery resulting in death (“DDRD”), abuse
of corpse, conspiracy, criminal use of a communications facility, and
tampering with evidence,6 as well as the two counts of PWID from the 2018
Complaint. The Commonwealth then withdrew the 2018 Complaint.7
It is undisputed that Botch filed an omnibus pre-trial motion that, inter
alia, requested suppression of consensually-intercepted statements he made
to Geltz in January 2019 and February 2019. See Trial Court Opinion,
7/27/21, at 1, 5. It is also undisputed that on May 4, 2021, after a
complicated procedural history that included two suppression hearings, the
court’s preparation of multiple opinions, and the court’s direction to the parties
to file supplemental briefs, the court suppressed the six recordings at issue in
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6 See 18 Pa.C.S.A. §§ 2506(a), 5510, 903(a)(1), 7512(a), 4910(1).
7 For unknown reasons, the District Attorney re-filed the PWID charges (which
were limited to the drugs seized pursuant to the October 24, 2018 search
warrant) in the 2019 Complaint charging DDRD and other offenses relating to
Bartkovsky’s death. When the Commonwealth filed the 2019 Complaint, the
2018 PWID charges had already been filed and were procedurally ready for
trial. It is also unclear why the District Attorney did not elect to put the new
charges through the charging and preliminary hearing stages, proceed to the
trial court and then file a motion to consolidate the separate matters before a
trial court under Pa.R.Crim.P. 582.
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this appeal, although it did not suppress unrecorded statements Botch made
to Geltz and others.8 See N.T., 5/4/21, at 53-56.9
The court concluded that Botch’s Sixth Amendment right to counsel on
the 2018 Complaint charges attached to the charges in the 2019 Complaint
as well because the 2019 Complaint included the prior PWID charges. See
id. Despite the facts that the PWID charges concerned only the drugs found
in Botch’s house after the victim’s death, not drugs he allegedly gave
Bartkovsky, that a DDRD conviction does not require a PWID conviction, and
that the DDRD and the other non-PWID charges in the 2019 Complaint were
uncharged at the time of recordings, the court barred the use of the
recordings at trial. See id.; see also Trial Court Opinion, 7/27/21, at 14, 16.
The Commonwealth timely appealed, and both it and the suppression
court complied with Pa.R.A.P. 1925.
The Commonwealth presents the following issue for our review:
Did the trial court err by suppressing recorded statements of
[Botch] intercepted by Jonathan Geltz at the [MCCF] when the
subject matter of said recordings was conduct[ed when Botch]
was not yet charged with, and, therefore, did not yet have a Sixth
Amendment right to counsel?
Commonwealth’s Brief at viii.
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8 Neither the trial court nor either of the parties identifies the six recordings
with particularity.
9 The trial court’s order also makes this distinction noting that “[t]his ruling
applies only to matters that were intercepted and recorded” by the CI. See
Order, 5/4/21.
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Our standard and scope of review in a Commonwealth appeal from a
suppression order is as follows:
We consider only the evidence from the defendant’s witnesses
together with the evidence of the prosecution that, when read in
the context of the entire record, remains uncontradicted. This
Court must first determine whether the record supports the factual
findings of the suppression court and then determine the
reasonableness of the inferences and legal conclusions drawn
from those findings. In appeals where there is no meaningful
dispute of fact, as in the case sub judice, our duty is to determine
whether the suppression court properly applied the law to the
facts of the case.
Commonwealth v. Champney, 161 A.3d 265, 271 (Pa. Super. 2017) (en
banc) (internal citation omitted).
The Sixth Amendment to the United States Constitution provides that
“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defense” and guarantees him the right to
have counsel present at all critical stages of the criminal proceedings.
Commonwealth v. Cox, 983 A.2d 666, 680 (Pa. 2009) (internal citation and
quotations omitted).10 The Sixth Amendment right to counsel attaches at the
initiation of formal judicial proceedings against an individual by way of formal
charge. See Commonwealth v. Hannibal, 156 A.3d 197, 212 (Pa. 2016).
After the right attaches, the police may not deliberately elicit a statement from
a defendant on the offense to which it attaches unless the defendant waives
the right. See id. “Deliberate elicitation” includes instances when the
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10 An accused’s Fifth Amendment right to counsel is not at issue in this appeal.
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government “deliberately and designedly set[s] out to elicit information from
an individual” through the use of an informant acting as a government agent.
Commonwealth v. Briggs, 12 A.3d 291, 324-25 (2011) (internal citation,
quotation, and brackets omitted); see also Hannibal, 156 A.3d at 212.
The Sixth Amendment right to counsel is “offense specific”: even when
it has attached for a charged offense, it does not bar questioning on
uncharged offenses, even if those offenses are “factually related” to the
charged offense. See Texas v. Cobb, 532 U.S. 162, 164, 167-78 (2001);
accord Cox, 983 A.2d at 680 (stating that under Pennsylvania law the Sixth
Amendment is offense specific).11 Thus, the Sixth Amendment only bars
questioning concerning an uncharged crime if that crime is “the same offense”
under the test set forth in Blockburger v. United States, 284 U.S. 299, 304
(1932), which examines whether: (1) the uncharged crime arose from “the
same act or transaction” and (2) whether the charged crime and the
uncharged crime “require[] proof of a fact which the other does not.” See
Cobb, 532 U.S. at 173. A mere overlap in proof between two crimes will not
establish a violation of the Blockburger test. See Commonwealth v.
Jackson, 10 A.3d 341, 345 (Pa. Super. 2010).
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11 Cobb rejects prior lower courts’ interpretation of McNeil v. Wisconsin,
501 U.S. 171 (1991), as containing an exception to the offense-specific nature
of the Sixth Amendment for crimes that are “factually related” to a charged
offense. See Cobb, 532 U.S. at 168.
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Here, the parties agree that the Sixth Amendment analysis in Cobb is
instructive. Cobb states that where the statement at issue involves facts
specific to uncharged crimes it is irrelevant that the offenses are “closely
related factually to the offense charged.” Cobb, 532 U.S. at 167-68. Thus,
if recorded statements involve information about crimes not then charged, the
statements should not be suppressed because the Sixth Amendment right to
counsel only applies to charged conduct regardless of the similarity of facts
(or overlapping facts). See id. at 168.
When law enforcement officials met with Geltz in December 2018, as a
result of his offer to provide information concerning Bartkovsky’s death, Botch
had been charged with PWID and related offenses concerning the drugs and
drug paraphernalia seized from his house on October 24, 2018. See 2018
Complaint, at 8. Although there was an ongoing investigation into
Bartkovsky’s death, Botch had not been charged with offenses relating to that
death in January and February 2019, when Geltz recorded conversations with
him in prison. Charges related to Bartkovsky’s death were not filed until June
7, 2019.
Geltz’s and Botch’s recorded conversations concerned Bartkovsky’s
death and the facts surrounding it; Geltz did not ask Botch about the search
warrant, any of Botch’s general drug-dealing activity, or any of the offenses
charged in the 2018 Complaint. In their briefs, the parties identified relevant
segments of the intercepted recordings, all of which are limited to information
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surrounding the victim’s death. See Commonwealth’s Brief at xii; Botch’s
Brief at 5-6.12 Further, in the recorded conversations, Geltz did not seek or
elicit any information about Botch’s involvement in a larger drug-dealing
operation or information regarding the charges in the 2018 Complaint. Thus,
under the Cobb test, the Sixth Amendment right to counsel did not attach
because the recorded statements at issue relate to uncharged crimes.
Accordingly, the recorded conversations should not have been suppressed.
See Cobb, 532 U.S. at 168.
In its Rule 1925(a) Opinion, the trial court noted its continued reliance
on Maine v. Moulton, 474 U.S. 159 (1985), and ultimately reasoned that the
facts of this case were “on all fours with Moulton” and not factually similar to
Cobb. See Trial Court Opinion, 7/27/21, at 16. Based on the perceived
similarity of this case to Moulton, the court suppressed the intercepted
conversations. See id. at 13-20. The court also stated that DDRD and PWID
are the same offense. See id. at 20-21.
We conclude that the trial court erred in relying on Moulton and
determining that PWID and DDRD are the same offense. First, Moulton is
readily distinguishable from this case. In Moulton, the recorded statements
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12 On appeal, Botch specifically identifies recordings in which he said he
overdosed Bartkovsky first and then “strung him the f*** up;” discussed the
air compressor Bartkovsky stood on to hang himself; asserted that “something
fishy happened” but he had nothing to do with it; said he gave Bartkovsky
drugs but never identified them; and that Bartkovsky hanged himself. See
Botch’s Brief at 5-6.
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at issue were obtained by Moulton’s co-defendant, Colson, in a matter that
was about to go to trial and involved their conversations strategizing and
preparing for a joint trial on charged theft crimes. See Moulton, 474 U.S.
at 162-63. Further, the police knew that the men were meeting to discuss
pending charges and plan trial strategy. See id. at 176-77. Thus, the police’s
purpose was to record statements between the parties about charged crimes
and obtain admissions from the defendant about charged crimes.13 There is
no evidence in the record that police encouraged Geltz to ask Botch about the
2018 Complaint and/or the PWID charges therein.
Additionally, in Moulton, the Supreme Court recognized that it is proper
to continue investigations of criminal activities “even though the defendant
ha[s] already been indicted.” Id. at 179. Significant to this case, the Court
drew a clear distinction between questioning about charged crimes and
uncharged crimes: although it stated “[i]n seeking evidence pertaining to
pending charges . . . investigative powers are limited by the Sixth Amendment
. . ..” id. at 179-80, it recognized, “[o]n the other hand, to exclude evidence
pertaining to charges as to which the Sixth Amendment right to counsel had
not attached at the time the evidence was obtained, simply because
other charges were pending at th[e] time, would unnecessarily frustrate
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13 Nothing in the facts shows that police were investigating additional and/or
uncharged crimes; the recordings showed that the police encouraged the co-
defendant to elicit Moulton’s admission concerning the charged crimes.
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the public’s interest in the investigation of criminal activities.” See id. at 180(emphasis added).
There can be no dispute here that Geltz and Botch were not co-
defendants and not preparing for an upcoming joint trial as in Moulton. They
only met for the first time when both were incarcerated for unrelated criminal
matters at MCCF in October 2018. See Geltz Statement, 12/18/18, at 2-3.
Further, when police met with Geltz they only discussed what Botch already
related to him. No evidence was presented that Geltz discussed with Botch
the already-charged PWID crimes. In fact, the two transcripts of discussions
between police and Geltz contain absolutely no instruction to Geltz to ask
about anything. Specifically, the police never encouraged him to ask about
the PWID charges in the 2018 Complaint. See Geltz Statement, 12/18/19;
Geltz Statement, 1/25/20. In the small portion of the recordings that
constitute conversations between Botch and Geltz, Geltz limited his
discussions with Botch to the facts surrounding Bartkovsky’s death. Botch
does not claim that Geltz asked him about his alleged drug dealing in general
or the drugs that formed the basis for the 2018 PWID charges in particular.
Thus, Moulton is not similar procedurally or factually to the case sub judice
where the uncontroverted evidence is that the purpose of recording the
statements between Geltz and Botch was to obtain information regarding the
uncharged crime of DDRD.
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There is also no legal basis to interpret the PWID charges in 2018
Complaint and refiled in 2019 Complaint as same offenses as DDRD. In Cobb,
the Supreme Court stated that “where the same act or transaction constitutes
a violation of two distinct statutory provisions, the test to be applied is . . .
whether each provision requires proof of a fact which the other does not.”
See Cobb, 532 U.S. at 173 (citation omitted). Under this test, PWID and
DDRD are plainly not the same offense.
The crime of DDRD has two elements: (i) intentionally administering,
dispensing, delivery, giving, prescribing, selling or distributing any controlled
substance, and (2) death resulting from the use of that drug. See,
Commonwealth v. Kakhankham, 132 A.3d 986, 991-92 (Pa. Super. 2015);
see also Commonwealth v. Peck, 242 A.3d 1274, 1281 (Pa. 2020) (stating
that “a violation of one of the specifically referenced provisions of the Drug
Act14 is an element of the crime of DDRD.”). A “violation” is distinct from a
charge (or a separate conviction). See Commonwealth v. Magliocco, 883
A.2d 479, 489-92 (Pa. 2005) (holding that a statute that requires the
commission of another offense does not require a charge of the commission
of that offense).15 PWID, on the other hand, requires only the intentional
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14 See 35 P.S. 780-113(a)(13), (14), (30).
15 Compare Commonwealth v. Caine, 683 A.2d 890, 892 (Pa. Super. 1996)
(en banc) (holding that the offense of the offense of homicide by vehicle while
driving under the influence (“HVDUI”) requires a conviction of driving under
(Footnote Continued Next Page)
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possession of a controlled substance with the intent to deliver that controlled
substance in violation of the Controlled Substance Act. See e.g.,
Commonwealth v. Roberts, 133 A.3d 759, 767 (Pa. Super. 2016).
DDRD thus has an element that PWID does not, i.e., the death of a
person to whom a controlled substance was administered, dispensed,
delivered, prescribed or sold. See 18 Pa.C.S.A. § 2506(a); Kakhankham,
132 A.3d at 992-993 (stating that the first element of DDRD, i.e., a delivery
or administration, requires intentionality and the second element requires,
inter alia, reckless disregard of death). Likewise, this Court held that DDRD
requires an intentional act in providing the contraband and a reckless
disregard of death resulting from the use of the contraband. See
Commonwealth v. Carr, 227 A.3d 11, 16-17 (Pa. Super. 2020) (emphasis
added). The DDRD statute, however, does not require a separate charge of
PWID. See 18 Pa.C.S.A. § 2506 (establishing that the offense is committed
by a person who violates the Controlled Substance, Drug, Device and Cosmetic
Act (“Controlled Substance Act”) where another person dies as a result of
using the substance). That the DDRD statute requires an act that violates the
Controlled Substance Act does not mean that a PWID charge is an element
of a DDRD conviction or that they are the same crime. Thus, an additional
PWID charge is not an element of a DDRD charge. Pursuant to Cobb, DDRD
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the influence (“DUI”), and that an acquittal of the predicate crime of DUI
renders the evidence of HVDUI insufficient).
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is separate and distinct from PWID and was uncharged at the time of the CI’s
recorded statements with Botch.
Pursuant to Cobb, DDRD is separate and distinct from PWID. At the
time of Geltz’s consensual wires in January and February 2019, DDRD was
uncharged. It is irrelevant that in Geltz’s de-briefing, he said that Botch had
asserted that he gave Bartkovsky drugs from a stash stamped “Death Row,”
which was stamped on drug packets found in Botch’s house during the
execution of the search warrant. Geltz’s initial interaction with Botch occurred
in prison, prior to any police involvement. See Geltz Statement, 12/18/18.
As noted, the recordings disclose no evidence that (1) Geltz inquired about
the drug packaging, or (2) Botch mentioned how the drugs were packaged.
The information on the recordings does not establish that Geltz inquired about
the 2018 PWID charges. Geltz’s conversations were limited to the facts
surrounding Bartkovsky’s death.
There is yet another, independent basis for concluding that Geltz’s
discussions of Bartkovsky’s death with Botch did not violate Botch’s Sixth
Amendment right to counsel. The Commonwealth alleges that Bartkovsky’s
death resulted from drugs in his system on October 22, 2018, and October
23, 2018, which formed the basis of the DDRD charge. There is no dispute
that the drugs that formed the basis the PWID charges in both the 2018
Complaint and the 2019 Complaint concerned the drugs police found when
they were called to Botch’s house on October 24, 2018, and the drugs they
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seized later that day pursuant to a search warrant. See Trial Court Opinion,
7/27/21, at 2-4. The police did not know what drugs, if any, were in the
victim’s body – they learned that later as a result of a toxicology report and
thus those drugs could not have been the basis of the PWID charges in the
2018 Complaint. Further, by October 23, 2018, according to several witness
accounts, Bartkovsky was dead. Thus, Bartkovsky could not have used the
drugs recovered on October 24, 2018. The search warrant executed on
October 24, 2018 recovered different drugs than those that were the basis of
the 2019 DDRD charge, even though the type of drug was the same. Botch’s
alleged provision of the drugs to the victim that resulted in the victim’s death
occurred on October 22, 2018, and October 23, 2018, and constituted the
completed offense of DDRD, before occupants of the house summoned the
police on October 24, 2018, to report the victim’s death and before the police
discovered drugs in the house on October 24, 2018. Because the DDRD
charge related to different drugs than those that formed the basis of the PWID
charges, questioning about the DDRD-related drugs did not address a
previously-charged offense and did not violate the Sixth Amendment.
In sum, 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
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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. Thus,
under Cobb, it is clear that the wiretap recordings at issue involved
conversations for a different offense than previously charged. See Cobb, 532
U.S. at 173.
For all of those reasons, we conclude that the Commonwealth did not
violate Botch’s Sixth Amendment right to counsel and the court erred in
suppressing the recorded conversations between Geltz and Botch.
Accordingly, we reverse the trial court’s order.
Order reversed. Case remanded. Jurisdiction relinquished.
Judge Nichols joins this memorandum.
Judge Pellegrini files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2023
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