Com. v. Camperson

Decision Date02 November 1994
Citation437 Pa.Super. 355,650 A.2d 65
PartiesCOMMONWEALTH of Pennsylvania v. Stephen CAMPERSON, Appellant.
CourtPennsylvania Superior Court

Robert J. Donatoni, West Chester, for appellant.

Maria Dutkowski, Asst. Dist. Atty., Norristown, for Com., appellee.

Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.

WIEAND, Judge:

Stephen G. Camperson was tried by jury and was found guilty of two counts each of possession of methamphetamine with intent to deliver and criminal conspiracy. Post-trial motions were denied, and Camperson was sentenced to serve concurrent terms of imprisonment for not less than four years nor more than ten years and for not less than eight years nor more than sixteen years on his two convictions of possession with intent to deliver. On direct appeal from the judgments of sentence, Camperson raises several issues, which we will review carefully.

The facts of this case are somewhat complicated and have a substantial effect on several of the issues which we have been asked to review. On November 29, 1989, Donald Theisan called Brian Wynn by telephone and asked Wynn if he had methamphetamine for sale. Wynn contacted Stephen Camperson, and Camperson agreed to furnish Wynn with the drug. On December 1, 1989, in Chester County, Camperson gave Wynn approximately an ounce of methamphetamine which Wynn, in turn, sold to Theisan in the company of John Murray, an undercover police officer, in Montgomery County. Wynn delivered the proceeds of the sale to Camperson later the same night.

Several days later, Theisan again contacted Wynn and asked Wynn if he could sell to him a quarter pound of methamphetamine. Wynn obtained the methamphetamine from Camperson at or about midnight on December 5, 1989, and sold it to Theisan and Murray in Plymouth Meeting, Montgomery County, on December 6, 1989. Wynn was placed under arrest and subsequently agreed to assist police in prosecuting Camperson. Wynn was released on his own recognizance and taken home.

On December 7, 1989, Wynn met with Camperson, under police surveillance, and paid him $3,500 for the methamphetamine which Camperson had furnished on December 5. Pursuant to instructions from the police, Wynn placed a further order for a half pound of methamphetamine, and he and Camperson agreed to meet later the same day at the Country Tavern, near Pottstown, in Chester County. Camperson then returned to his residence, still under police surveillance. Several hours later, as Camperson neared the Country Tavern, he became aware of the presence of police and attempted to flee. A lengthy chase ensued, following which Camperson was apprehended. On his person were 238.8 grams of methamphetamine and the $3,500 which he had received from Wynn earlier in the day.

Following Camperson's arrest, police obtained a search warrant and searched his residence in St. Peter's Village, Warwick Township, Chester County. There police found additional drugs and drug paraphernalia. Camperson was subsequently tried for various offenses in Chester County. In Montgomery County, Camperson was tried by jury and was found guilty of being an accomplice in the several sales of methamphetamine made by Wynn to Theisan and John Murray in Montgomery County.

I.

On the morning following the first day of trial, a news article appeared in the Pottstown Mercury under the headline: "Drug trial begins for St. Peter's man." The article contained references to a prior escape by Camperson in Chester County and to the charges which he faced in that county. When court convened, Camperson's lawyer moved for a mistrial because of the newspaper story. The trial court questioned the jurors, three of whom acknowledged having seen the article. These three jurors were then questioned individually, out of the hearing of the remaining members of the panel. Two said they had read the article; the third juror had not read the article but had stopped as soon as he realized it pertained to the case then on trial before the jury of which he was a part. Although all three jurors insisted that they could nevertheless decide the case fairly on the evidence which they would hear in the courtroom, the trial court excused the two who had read the article and replaced them with alternate jurors. On appeal, Camperson argues that the court erred when it refused to grant a mistrial.

The leading case in Pennsylvania on prejudicial publicity occurring during a trial is Commonwealth v. Bruno, 466 Pa. 245, 352 A.2d 40 (1976). From this, we glean the following general principles:

The procedure to be followed to ensure a fair trial in the face of prejudicial publicity is clearly within the sound discretion of the trial court. Because the choice of procedure involves the balancing of fundamental rights--the defendant's right to a fair trial before an impartial jury and the rights associated with a free press--this discretion must be exercised with care. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209, cert. denied, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973).

....

The preferred procedure when highly prejudicial material is publicized during the trial and the jury is not sequestered is to question the jurors individually, out of the presence of other jurors. See United States v. Schrimsher, 493 F.2d 848, 854 (5th Cir.1974); Mares v. United States, 383 F.2d 805, 809 (10th Cir.1967); Margoles v. United States, supra [407 F.2d 727] at 737 [ (7th Cir.1969) ]; ABA Standards Relating to Fair Trial and Free Press §§ 3.5(e), (f) (Commentary ). However, questioning jurors as a group or giving special precautionary instructions may be a sufficient precaution depending on the facts of the particular case. See e.g., United States v. Schrimsher, supra; Margoles v. United States, supra.

See also: Commonwealth v. Crispell, 530 Pa. 234, 608 A.2d 18 (1992).

In the instant case, the trial court had failed to give the jury any precautionary instructions regarding newspaper publicity on the day prior to the appearance of the newspaper story. After the story had appeared, however, the jurors were examined, and it was determined that three had seen the article and two had read it. These three jurors were examined by the court, and defense counsel was also allowed to examine them. The two who had read the article were excused and replaced by alternate jurors. The third, the court found, was unaware of the contents of the article.

The remaining jurors were then assembled and cautioned that they were to draw no inferences from the fact that two of their number had been excused. They, in turn, assured the court that they would hear the evidence impartially.

Under these circumstances, we are persuaded that the trial court did not abuse its discretion and that appellant was not deprived of a fair trial.

II.

A motion to suppress evidence had previously been litigated in the Chester County action and had been decided adversely to appellant. When a similar motion to suppress evidence came before the trial court in the instant action, the court refused to relitigate the suppression issues in the absence of new evidence. Instead, appellant was permitted to make a part of the record the notes of testimony taken in Chester County as well as the findings and conclusions of the Chester County Court of Common Pleas. The proceedings in Chester County, therefore, are presently available for appellate review in this case.

The trial court's ruling was consistent with the decision of the Supreme Court in Commonwealth v. Lagana, 510 Pa. 477, 509 A.2d 863 (1986). There, the Court was faced with two prosecutions in the same county arising out of a single search and seizure. The Supreme Court held that a decision by a suppression judge in the first prosecution could be incorporated into the record of the second hearing and, with new evidence previously unavailable, if any, could be reviewed on appeal. The Court said:

In the present context we believe that some limited form of collateral estoppel is dictated, since it would have the beneficial effect of discouraging the relitigation of the same issues based on the same evidence, while at the same time preventing judges of equal jurisdiction from entering diverse rulings on the same evidence. However, these benefits do not offset the potential negative impact of perpetuating an erroneous ruling.

The solution for this dilemma is to have the ruling of the first suppression hearing incorporated into the record of the second hearing, and to allow review of the first decision on appeal as if it had been entered anew.

Thus, in those instances where two prosecutions arise out of a single search and/or seizure, a decision by a suppression judge during the first prosecution can, upon the motion of the previous prevailing party, become part of the second prosecution. The party against whom this decision is being offered may offer any new evidence which was previously unavailable. See generally Pa.R.Crim.P. 323(j). Absent such new evidence the suppression judge in the second prosecution must adopt the findings and conclusions of the first judge, and incorporate them into the record. Thereupon, the party against whom the first decision is offered may have the validity of the decision reviewed on appeal.

Id. at 483, 509 A.2d at 866 (footnote omitted). See also and compare: Commonwealth v. Iverson, 358 Pa.Super. 1, 516 A.2d 738 (1986).

Although Lagana involved separate actions before different judges of the same court, its teaching is equally applicable to separate cases before courts of equal jurisdiction in different counties of this Commonwealth. Because Lagana was followed by the trial court in the instant case, we find no error in the procedure which it adopted.

III.

We...

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