Com. v. Besch
| Decision Date | 05 June 1996 |
| Citation | 544 Pa. 1,674 A.2d 655 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Steven A. BESCH, Appellant. |
| Court | Pennsylvania Supreme Court |
Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.
This case presents the Court with the question of whether the prosecution of a wholly illegitimate drug conspiracy which exhibits no legitimate purpose nor encompasses any elements of a legitimate business activity is within the scope of the Pennsylvania Corrupt Organizations Statute. 18 Pa.C.S. § 911 et seq. (hereinafter referred to as "Pa.C.O.A."). For the reasons that follow, this Court finds that the Pa.C.O.A. statute does not encompass the prosecution of a wholly illegitimate enterprise, thus, we affirm the Superior Court decision in part, and reverse in part. 1
The instant action arose from an investigation by the Sixth Statewide Grand Jury into the drug trafficking operation of the Appellant in and around the Mifflin County area of Pennsylvania. The investigation commenced in 1987 and culminated on October 12, 1989 with the arrest of Appellant and the search of his home. During the search, police seized 16 one-half gram packets and four "eight ball" packets of cocaine with a street value of $2,360.00, cash totalling $1,332.00, scales, baggies, triangular packets commonly used for packaging drugs, 50 doses of LSD, marijuana residue, a roach clip and large sun lamps commonly used in drying marijuana leaves.
Based upon the information accumulated during the investigation and the items seized in the search, Appellant was charged with nine specific violations of the criminal code which included one count of violating Pa.C.O.A. and one count of conspiring to violate Pa.C.O.A., one count of conspiring to deliver a controlled substance, four counts of delivery of controlled substances, possession with intent to deliver a controlled substance and possession of a controlled substance. 2 After a jury trial Appellant was convicted on all counts. The trial court sentenced Appellant to a cumulative term of imprisonment of 8 to 33 years and fines totalling $85,000. The Superior Court affirmed the convictions but reversed in part the judgment of sentence for a determination of Appellant's ability to pay the fines imposed. This Court granted allowance of appeal.
During the course of the trial, the Commonwealth presented a significant number of witnesses, many of whom were members of the drug trafficking network which operated from Appellant's home. This testimony revealed a clearly defined operation wherein Appellant, and his primary conspirator, Douglas Woodward, had by specific agreement developed a business of distributing marijuana and cocaine. Woodward testified that he originally met Appellant in 1985 through a mutual acquaintance, Wayne Yohn, in order to purchase marijuana from Appellant. Yohn had previously supplied marijuana to Woodward, but as he had none available at the time, he referred Woodward to Appellant.
Shortly after their initial meeting Appellant and Woodward decided to go into business together. Each man put up an equal amount of cash and purchased one-half pound of marijuana which they divided into smaller packets for resale. Each man made $300 profit from this initial investment which they used to continue the operation. According to Woodward, they had a series of regular customers, which included Wayne Yohn, Jeff Herbster and Charlie Miller. As business continued Woodward and Appellant decided to add cocaine to their inventory in order to increase their profits. They also had a regular chain of suppliers which included Anthony Dalton, Ken Norton, and Jeff Holland. Woodward also testified that the cocaine they bought was sold to their suppliers from one Garth Honsaker of Altoona. 3
Woodward testified that Appellant handled all the money transactions and that it was Woodward's job to cut and package all the marijuana and cocaine for resale. All sales took place from Appellant's home, where Woodward used the extra bedroom for storage and packaging of controlled substances (or merchandise). Woodward testified that he was a drug user but that Appellant was not. Woodward also testified that he usually took a portion of his profits in cocaine or marijuana. Business went on smoothly for Appellant and Woodward until the arrest of a regular customer, Charlie Miller in 1989.
Miller was introduced to Appellant by Jeff Herbster in order to purchase cocaine. Miller had a criminal record and often was short of funds for drug purchases. Miller, knowing that Appellant collected guns, offered to exchange guns for drugs. Appellant agreed to the exchange and Miller subsequently burglarized a residence of one of Miller's own relatives and traded several of the stolen handguns with Appellant in exchange for cocaine. Miller was later arrested for the burglary and entered into an agreement with the prosecutor for a reduced penalty on the burglary and gun charges in exchange for his testimony against Appellant.
Following Miller's arrest several of Appellant's other "associates" were arrested and eventually testified against Appellant. In addition to the testimony of Woodward and Miller as described above, the following people offered testimony regarding their association with Appellant.
Ken Norton testified that Woodward introduced him to the Appellant. Norton was a regular supplier of cocaine to Appellant; all sales took place in Appellant's home. Norton made deliveries to Appellant at least once a week. Norton's profit from the enterprise was a portion of the cocaine for his personal use.
Dennis Moore testified that he was acquainted with Appellant as they were both gun collectors. Moore testified that he had occasionally sold guns to Appellant and that he regularly purchased cocaine from Appellant in Appellant's home.
Daniel Wagner testified that he was a regular customer of Wayne Yohn and Jeff Herbster and that those two men introduced him to Appellant. Yohn and Herbster told Wagner that if they did not have cocaine when he needed it he could buy it from Appellant. Wagner only purchased cocaine from Appellant on one occasion.
Roy Marks testified that he was a regular customer of Miller and/or Yohn and on one occasion when neither of his regular suppliers had anything available they sent him to Appellant and he purchased marijuana. Marks also testified that he was in Appellant's residence on one occasion when Yohn brought cocaine into the house. Marks observed Yohn put the cocaine in the basement unbeknownst to Appellant.
One of the most informative witnesses against Appellant was Dennis Knepp. Knepp was a regular cocaine user who had been arrested in 1986 for selling drugs for the notorious Honsaker. As a result of the 1986 arrest he entered into a plea agreement in federal court, agreeing to serve as an informant in exchange for probation. 4 Knepp normally purchased his cocaine from Yohn. On one occasion when Yohn was unable to supply Knepp he introduced Knepp to Appellant. Knepp thereafter made all his drug purchases from Appellant. Knepp testified that he was in Appellant's home and observed Yohn, Herbster, Moore and Zannino all buying drugs from the Appellant. Knepp also testified that Appellant referred to the above named individuals as "his group" and bragged that they never "talked on" each other.
Michael Majestic testified that he was a regular user who contacted Louis Zannino for the purposes of purchasing cocaine. Zannino introduced Majestic to Appellant and Majestic, on at least one occasion, purchased cocaine from Appellant. Majestic also testified that at one time when he was in Appellant's home he observed Herbster give a large amount of cash to Appellant so that Appellant could purchase cocaine for Herbster.
Based on all the testimony as delineated above the Commonwealth argues that a drug enterprise existed which included Appellant, Knepp, Miller, Zannino, Herbster, Yohn, Woodward, Honsaker, Norton, and Holland. The enterprise functioned with Appellant's home as the central location for buying, packaging for resale and then selling of cocaine and marijuana. Norton and Holland were regular suppliers to Appellant, who allegedly received their drugs from Honsaker. Knepp, Miller, Herbster, Yohn and Zannino were regular customers who often brought new customers into the network. Woodward was Appellant's primary partner in trade. The entire enterprise existed for the purpose of buying and selling illegal drugs. Although Appellant did run an automobile repair shop out of his garage at the same location, there was no testimony offered that proceeds from the drug enterprise were invested into the car repair business. In fact, one witness testified that he believed that car repair was a hobby of Appellant, not an income producing business.
As previously stated herein Appellant's participation in the above recited activities lead to his conviction on four counts of delivery of a controlled substance, one count of possession of a controlled substance, one count of conspiracy to delivery controlled substances and two violations of the Pa.C.O.A. statute. 5 Specifically at issue in this case are the two Pa.C.O.A. violations of 18 Pa.C.S. § 911(b)(3) and (b)(4):
(3) It shall be unlawful for any person employed by or associated with any enterprise to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity.
(4) It shall be unlawful for any person to conspire to violate any of the provisions of paragraph (1), (2) or (3) of this subsection.
Taking all of the evidence in the light most favorable to...
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