Com. v. Bracalielly
| Decision Date | 19 July 1995 |
| Citation | 540 Pa. 460,658 A.2d 755 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Mark BRACALIELLY, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Raymond STARR, Appellant. |
| Court | Pennsylvania Supreme Court |
Paul D. Boas, Mark D. Lancaster, Berlin, Boas & Isaacson, Pittsburgh, for appellant in No. 74.
Lynn Erickson, Leesport, for appellant in No. 13.
David M. McGlaughlin, Newman & McGlaughlin, Philadelphia, for amicus curiae Pennsylvania Ass'n of Crim. Defense Lawyers in No. 13.
Robert E. Colville, Dist. Atty., Claire C. Capristo, Deputy Dist. Atty., Kemal A. Mericli, Kevin F. McCarthy, Asst. Dist. Atty., for appellee in No. 74.
Claude A. Lord Shields, Dist. Atty., Jacqueline L. Russell, Asst. Dist. Atty., for appellee in No. 13.
Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE and MONTEMURO, JJ.
This consolidated appeal requires us to determine whether we should bar the instant prosecutions. Appellants contend that because these prosecutions arise from conduct which forms part of the same criminal episode on which previous prosecutions were based, 18 Pa.C.S. § 110 requires their dismissal. The Commonwealth argues that the instant prosecutions are not based on conduct constituting the same criminal episode as the previous prosecutions and therefore do not violate 18 Pa.C.S. § 110. Because the inquiry as to whether a series of criminal acts constitutes a single criminal episode is fact dependent, we first review the factual history of each case.
This case involves various drug related offenses which occurred over the period from August 7 to August 20, 1990. During this period, Mark Bracalielly ("Bracalielly") allegedly participated in four transactions involving controlled substances. Two of these transactions occurred in Allegheny County and two occurred in Butler County. Furthermore, on August 20, 1990, the police obtained a warrant, and, upon searching Bracalielly's Allegheny County residence, discovered various controlled substances and drug paraphernalia.
On August 4, 1990, Detective Byers, a member of the North Hills Drug Task Force, was contacted by Michael Deardon, a confidential informant who had been reliable in the past, concerning the possibility of investigating Bracalielly. At this time, Bracalielly resided at 213 Henderson Street in the North Side area of Pittsburgh. Deardon had arranged to buy one eighth of an ounce of cocaine from Bracalielly at the McKnight Seibert Shopping Center in Ross Township. Affidavit For Criminal Complaint of Dets. Byers & Herb, 9/20/90 (violation date 8/7/90).
On August 7, 1990, Deardon met with Bracalielly at Maggie Mae's in the McKnight Seibert Shopping Center. Several detectives maintained surveillance inside and outside the restaurant. Deardon and Bracalielly exited the restaurant and proceeded to a grey Chevrolet Cavalier, where Deardon purchased 3.32 grams of cocaine from Bracalielly for $250. Id. Deardon then made arrangements to purchase one ounce of cocaine in the near future. Id.
Based on this transaction, the Commonwealth charged Bracalielly with one count each of possession of a controlled substance, 1 possession with intent to deliver a controlled substance, 2 delivery of a controlled substance, 3 and criminal conspiracy. 4 Allegheny County Criminal Action No. 9016136.
Butler County authorities began an independent investigation of Bracalielly, using the same informant. During the next four days, Deardon contacted Bracalielly constantly to arrange another transaction. (N.T. 8/29/91 at 15). On August 11, Bracalielly met Deardon in Allegheny County and they traveled to the Cranberry Mall in Cranberry Township (Butler County) where Bracalielly sold additional drugs to Deardon in the parking lot in the presence of a Cranberry Township law enforcement officer. (N.T. 8/29/91 at 7-8). See also (N.T. 6/12/91 at 13-18) (attached as Exhibit B to Defendant's Memorandum in Support of Motion to Quash); (N.T. 8/29/91 at 7-8). Butler County authorities subsequently charged Bracalielly with possession of a controlled substance, 6 delivery of a controlled substance, 7 and conspiracy. 8 Butler County Criminal Action No. A1054 of 1990.
On August 16, 1190, Deardon once again contacted Bracalielly at his home in Allegheny County. This time arrangements were made for Deardon to purchase one ounce of cocaine for $1,550. Affidavit For Criminal Complaint of Dets. Byers & Herb, 9/20/90 (violation date 8/17/90). The transaction occurred in the early morning hours of August 17, 1990, in Ross Township, Allegheny County. Id. Detective Byers accompanied Deardon while other officers maintained surveillance. Id. After the transaction, Deardon surrendered the cocaine to Detective Byers. Lab tests subsequently revealed the presence of 28.55 grams of cocaine. Id.
The Commonwealth once again charged Bracalielly with one count each of possession of a controlled substance, 9 possession with intent to deliver a controlled substance, 10 delivery of a controlled substance, 11 and criminal conspiracy. 12 Allegheny County Criminal Action No. 9016135.
On August 20, 1990, Deardon again contacted Bracalielly at his Allegheny County home to set up a "reverse sting." 13 (N.T. 8/29/91 at 10). Bracalielly met Deardon in Allegheny County and drove him to the Cranberry Mall in Butler County. Id. at 19. At the Cranberry Mall, Bracalielly was arrested after attempting to purchase one quarter pound of cocaine for $4,000 from Detective Evanson of the Cranberry Township Police. Bureau of Narcotics Investigations and Drug Control Memorandum Report, attached as Exhibit J to Defendant's Memorandum in Support of Motion to Quash. The Commonwealth charged Bracalielly with possession of a controlled substance, 14 possession with intent to deliver a controlled substance, 15 criminal conspiracy, 16 possession of an instrument of a crime, 17 and possession of an offensive weapon. 18 Butler County Criminal Action No. B1055 of 1990, attached as Exhibit E to Defendant's Memorandum in Support of Motion to Quash.
After his arrest, Bracalielly provided statements divulging the presence of thirty-two grams of cocaine and a quantity of L.S.D. at his Allegheny County home. Affidavit of Barbara Roberts, attached as Exhibit G to Defendant's Memorandum in Support of Motion to Quash. Based on this information and corroborating statements by Deardon, a search warrant was issued for 213 Henderson Street in Pittsburgh. Authorities discovered 31.1 grams of cocaine, 197 dosage units of L.S.D., 0.8 grams of marijuana, and various drug paraphernalia. Affidavit of Barbara A. Roberts in Support of CC 9100984 (11/19/90). Bracalielly was charged in Allegheny County with two counts of possession of a controlled substance, 19 two counts of possession with intent to deliver a controlled substance, 20 and one count each of criminal conspiracy, 21 possession or distribution of a small amount of a controlled substance, 22 and possession of drug paraphernalia. 23 Allegheny County Criminal Action No. 9100984.
Bracalielly was charged in Butler County for the crimes that occurred there on August 11, 1990, and August 20, 1990. On June 13, 1991, Bracalielly entered pleas to the charges contained in the Butler County criminal actions. (N.T. 8/29/91 at 14).
On August 14, 1991, Bracalielly filed an omnibus pretrial motion in Allegheny County contending that his convictions in Butler County were for offenses arising out of the same criminal conduct as the Allegheny County charges and therefore, the Allegheny County charges were barred by 18 Pa.C.S. § 110. Defendant's Omnibus Pre-Trial Motion at 3-4. After hearing and argument, the trial court denied Bracalielly's motion to quash the charges stemming from the August 7 and August 17 incidents, but did quash the charges arising from the search of Bracalielly's residence on August 20.
Bracalielly appealed and the Commonwealth cross-appealed. The Superior Court reversed the trial court order quashing the charges resulting from the search of Bracalielly's residence on August 20, and affirmed the trial court's denial of Bracalielly's motion to quash the August 7 and August 17 charges. Bracalielly now contends that the Superior Court erred and we should reverse.
On June 22, 1990, Raymond Starr ("Starr") was arrested under two separate criminal complaints alleging the same violations of the Controlled Substance, Drug, Device, and Cosmetic Act. 35 Pa.S. §§ 780 to 960. The first complaint alleged that on January 24, 1989, Starr sold 25 grams of marijuana for $175 to an undercover State Narcotics Agent. Starr was charged with possession of a controlled substance, 24 possession with intent to deliver a controlled substance, 25 and delivery of a controlled substance. 26 Schuylkill County Criminal Action No. 553 of 1989. The second complaint alleged that on February 8, 1989, Starr once again sold marijuana to an undercover State Narcotics Agent. This time Starr sold 26.7 grams for $180. The Commonwealth charged Starr with the same three offenses. Schuylkill County Criminal Action No. 551 of 1989.
On January 5, 1990, Starr was found not guilty of the charges resulting from the February 8, 1989, incident. On February 23, 1990, Starr filed a Motion to Dismiss the charges arising from the incident on January 24, 1989. Starr argued that both transactions were part of the same criminal episode and therefore, 18 Pa.C.S. § 110 barred prosecution of the January 24 charges. The trial court denied the motion and the Superior Court affirmed.
18 Pa.C.S. § 110
Before addressing the merits of these cases, we must determine whether these appeals are...
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