Com. v. Delligatti

• Decision Date: 11 February 1988
• Citation: 538 A.2d 34,371 Pa.Super. 315
• Parties: COMMONWEALTH of Pennsylvania v. Thomas M. DELLIGATTI, Appellant.
• Court: Pennsylvania Superior Court

Page 34

538 A.2d 34

371 Pa.Super. 315

COMMONWEALTH of Pennsylvania v. Thomas M. DELLIGATTI, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 14, 1987.

Filed Feb. 11, 1988.

H. David Rothman, Pittsburgh, for appellant.

Dara A. DeCourcy, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before BROSKY, DEL SOLE and HOFFMAN, JJ.

DEL SOLE, Judge:

Appellant was charged and convicted of five counts of Possession of Heroin in violation of 35 Pa.S.A. § 780-113(a)(16) and five counts of Delivery of Heroin in violation of 35 Pa.S.A. § 780-113(a)(30). Post-verdict motions were filed and denied by the trial court. Thereafter, Appellant was sentenced to three consecutive two-to-five years terms of incarceration and two consecutive ten years probationary periods. This appeal follows.

By his appellate brief, Appellant lodges the following arguments:

I. By agreeing to and allowing Appellant to retain a quantity of heroin to perpetuate his own addiction as the inducement for each of the five deliveries in issue, the police became so overinvolved that they violated due process and entrapped Appellant as a matter law;

II. Appellant was denied a fair trial because of the court's refusal to make the informant available to the Appellant and his counsel before and during trial and because of the court's refusal to instruct the jury, as requested, relative to the Commonwealth's failure to produce the informant and because of the court's refusal to allow counsel to argue inferences based on the Commonwealth's failure to produce the informant;

III. The court erred and abused its discretion in refusing other points for charge;

IV. Appellant was denied a fair trial because he was not allowed an individual voir dire;

V. Appellant was denied a fair trial because the court refused to allow certain questions proposed for prospective jurors; and,

VI. The trial judge erred in a number of his evidentiary rulings and in restricting the cross examination of the Commonwealth's primary witness, Detective Craig.

We begin with a synopsis of the facts leading to Appellant's arrest. The record reflects that on August 8, 1985 Detective Timothy Craig, of the Pittsburgh Police Department, was working undercover in a drug-related investigation. On that date, Detective Craig accompanied a confidential informant to an apartment occupied by Gary Schillinger. Appellant was present in the apartment during this visit and introduced himself to Detective Craig. Detective Craig was introduced as "Jimmy" (N.T., 6/18/86, 22). Appellant asked Detective Craig and the informant what they were looking for. Detective Craig's response was a "bundle" of heroin (N.T., 6/18/86, 23). ¹ After making three phone calls, Appellant asked Detective Craig if he wanted to go for a ride. Detective Craig drove as Appellant directed him to the 800 block of Rebecca Street in Wilkinsburg. Detective Craig stopped the vehicle, gave Appellant $220, and watched Appellant enter a building. A few minutes later, Appellant returned with a bundle of heroin (N.T., 6/18/86, 24-26). As Detective Craig drove Appellant back to the apartment, Appellant retained a few balloons for himself and gave the remaining balloons to Detective Craig (N.T., 6/18/86, 29).

The next time Detective Craig came in contact with Appellant was on September 3, 1985 at the Arcade Bar in Edgewood (N.T., 6/18/86, 30-32). Once again, Appellant asked Detective Craig what he could do for him. Detective Craig responded that he wanted another bundle of heroin. Appellant advised Detective Craig that he could obtain the heroin for him. The two men left the bar, entered Detective Craig's vehicle, and drove to Rebecca Street again. Detective Craig handed $220 to Appellant, watched him enter the same building as before, and waited for Appellant's return. Appellant came back to the vehicle, and as Detective Craig drove back to the bar, removed a couple of balloons from a bundle of heroin and gave Detective Craig the balance (N.T., 6/18/86, 33-35).

On October 16, 1985, Detective Craig made arrangements to meet Appellant on the corner of Forbes Avenue and Braddock Avenue. At this meeting, Appellant asked Detective Craig what he was looking for. Once again, Detective Craig related that he wanted a bundle of heroin. Appellant agreed to secure the heroin. Detective Craig gave Appellant $220 and waited for his return. When Appellant returned to the street corner one half hour later, Detective Craig got into Appellant's car. Appellant handed him a package, which had been opened, containing 12 balloons of heroin (N.T., 6/18/86, 37-41).

Detective Craig's fourth encounter with Appellant occurred on October 23, 1985. The two men met at the same street corner as during the last transaction. Appellant asked Detective Craig what he was looking for. Detective Craig's response was "the same" (N.T., 6/18/86, 42). Appellant agreed to obtain the heroin, received $220 from Detective Craig, and left. Approximately one hour later, Appellant returned and presented Detective Craig with 12 baggie corners of heroin (N.T., 6/18/86, 41-51).

The final drug purchase occurred on January 2, 1986. Detective Craig contacted Appellant and arranged to meet him once again at the corner of Forbes and Braddock Avenues. Appellant agreed to procure heroin for Detective Craig. On this occasion, Detective Craig was permitted to follow Appellant in his car to South 18th Street in the South Side of Pittsburgh. Both cars came to a stop, Appellant approached Detective Craig's vehicle and asked for the usual $220. Appellant told Detective Craig to wait for him there and then drove away in his car. Appellant returned and handed Detective Craig a cigarette pack containing 11 baggie corners of heroin. At this time a surveillance team of the Pittsburgh Police Department arrived and Appellant was placed under arrest (N.T., 6/18/86, 51-57).

Appellant first contends that Detective Craig's conduct in this case violated his due process rights, or in the alternative, amounted to entrapment. The due process claim is based on the fact that, during the course of their dealings, Detective Craig permitted Appellant to retain certain amounts of the acquired heroin. Appellant urges that Detective Craig's actions in this respect were outrageous and manifested overinvolvement by the police.

In Commonwealth v. Mathews, 347 Pa.Super. 320, 500 A.2d 853 (1985), we held that "[e]ven where entrapment is not proved, police involvement in criminal activity may be so outrageous that a prosecution will be barred on due process grounds." Id. at 500 A.2d at 854. See United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976). The appellees in Mathews were arrested for the manufacture of methamphetamine. Upon being found guilty of attempt to manufacture a controlled substance, the trial court, on post-verdict motions, arrested judgment on grounds that the police conduct was so outrageous that the appellees were denied due process. We affirmed.

The record in that case showed that the police provided the appellees with money so that they could rent the residence where they were arrested. Appellees were also supplied with the money and the means by which the chemicals needed for the manufacture of methamphetamine could be purchased. Likewise, the police assisted in physically bringing equipment to the residence in which the appellees attempted to concoct the controlled substance. Furthermore, due to the appellees' ineptitude in manufacturing the controlled substance, an Allegheny County criminalist and chemist's services were utilized to render step-by-step instructions in mixing the formula. In the end, the fruit of these efforts amounted to a brown sludge containing methamphetamine. Id. at 500 A.2d at 855-857.

It was apparent from the record that the appellees were unable to commit the crime despite the police's overwhelming efforts to teach them how to accomplish their goal. The trial court astutely observed that "[t]he police not only set the stage for the criminal act but also were principal players thereon without which Defendants could not have acted. Slip op. of tr. ct. at 8-9." Id. at 500 A.2d at 857. Clearly, the facts in Mathews illustrated outrageous conduct on part of the police so as to bar prosecution on due process grounds.

We are unconvinced that Detective Craig's conduct in the instant matter violated " 'fundamental fairness, shocking to the universal sense of justice,' mandated by the Due Process Clause of the Fifth Amendment." United States v. Russell, supra, at 411 U.S. 432, 93 S.Ct. at 1643, quoting, Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246, 80 S.Ct. 297, 304, 4 L.Ed.2d 268 (1960). Appellant argues that Detective Craig became overinvolved when he permitted Appellant to retain part of the heroin which Appellant had secured for him. However, we cannot find on that fact alone that the investigative techniques used by Detective Craig manifested outrageous behavior.

Unlike the circumstances present in Mathews, Detective Craig did not take an overly active role in Appellant's commission of the crimes charged. There is no evidence that Appellant was issued step-by-step instructions amounting to sophisticated puppetry on Detective Craig's part. To the contrary, the record is replete with testimony that Appellant issued the terms by which Detective Craig would receive the bundles of heroin. That Detective Craig permitted Appellant to retain a portion of the acquired heroin as a commission for his services does not evoke a finding of overinvolvement. Detective Craig testified that Appellant's decision to skim a few balloons from the bundle as a "copping" fee was done normally in that course of business (N.T., 6/18/86, 72-73). Detective Craig also related that it was not a practical option to arrest Appellant at the time he took out his payment insofar as it...