Com. v. Dennis

• Decision Date: 08 December 1992
• Citation: 618 A.2d 972,421 Pa.Super. 600
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Tracy Eugene DENNIS, Appellant.
• Court: Pennsylvania Superior Court

Page 972

618 A.2d 972

421 Pa.Super. 600

COMMONWEALTH of Pennsylvania, Appellee, v. Tracy Eugene DENNIS, Appellant.

Superior Court of Pennsylvania.

Argued July 29, 1992.

Filed Dec. 8, 1992.

Gary B. Zimmerman, Pittsburgh, for appellant.

Mary B. Seiverling, Deputy Atty. Gen., Harrisburg, for Com., appellee.

Before TAMILIA, HUDOCK and HESTER, JJ.

HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed on Appellant following conviction on two counts of corrupt organizations, ¹ four counts of delivery of a controlled substance (methamphetamine), ² and one count of criminal conspiracy. ³ Post-trial motions were filed and denied, and Appellant was sentenced to seven and one-half (7 1/2) to twenty (20) years in prison on the corrupt organizations conviction, and concurrent sentences of two and one-half (2 1/2) years on three of the controlled substance convictions, and a concurrent sentence of five (5) to ten (10) years on the criminal conspiracy conviction. This appeal followed. We affirm.

The facts involved in this case concern a series of three-way transactions for the sale of methamphetamine which involved individuals in Pennsylvania, New Jersey and Florida. The testimony at trial revealed that over a period of time from 1981 to 1989, Appellant was involved in a methamphetamine distribution scheme involving several people, including Craig Mahlon, Kevin Reilly, and William Bell. Both Mahlon, and, later, Reilly received the drugs either in the Pocono Mountains region of Pennsylvania or in New Jersey. Mahlon left the operation and substituted Reilly who moved to Florida in 1986. While continuing to be involved in this same scheme of distribution, due to Reilly's move to Florida, the methamphetamine was sent by mail or U.P.S. to Florida and then sent by Reilly from Florida to William Bell in Clearfield County, Pennsylvania. ⁴ Bell then sold the drugs to individuals who worked for him.

As part of the evidence submitted at trial, the Commonwealth offered the results of a search of Appellant's residence which took place pursuant to a New Jersey search warrant on October 6, 1986. During this search, $218,000 in U.S. currency was found in a safe in Appellant's basement.

Appellant raises the following issues in his appeal:

I. The evidence is insufficient to sustain Appellant's conviction for violating 18 Pa.C.S. Section 911(B)(3) Corrupt Organization and 18 Pa.C.S. Section 911(B)(4) Conspiracy, Corrupt Organizations in that the evidence failed to prove the existence of a separate enterprise apart from the drug conspiracy activity.

II. The evidence is insufficient to maintain Appellant's conviction on counts V, VI and VII, as the crimes charged were committed outside the territorial limits of Pennsylvania.

III. The evidence was insufficient to convict Appellant with delivery of Methamphetamine, 35 Pa.C.S. 780-113(A)(30), because the proof was not reasonably certain as to date and time so that the double jeopardy requirements of the Pennsylvania and United States Constitutions were not satisfied. The charge itself failed to adequately notify Appellant of the crime and the lower court created a new crime without the approval of the legislature.

IV. The fruits of an unlawful search by New Jersey officials were erroneously admitted into evidence at the trial of this case as the search was conducted on the basis of a search warrant issued without probable cause.

Appellant's Brief at 4.

Appellant's first issue concerns the sufficiency of the evidence presented at trial. In reviewing the sufficiency of the evidence, we must examine the evidence in the light most favorable to the Commonwealth as verdict winner and, in light of this and the permissible inferences which may be drawn therefrom, whether all of the elements of the crime have been established beyond a reasonable doubt. Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986).

18 Pa.C.S. § 911(b) reads in pertinent part:

(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 paragraphs (1), (2) or (3) of this subsection.

18 Pa.C.S. § 911(h) reads in pertinent part:

(1) "Racketeering activity" means:

(ii) any offense indictable under section 13 of the act of April 14, 1972 (P.L. 233, No. 64) known as The Controlled Substance, Drug, Device and Cosmetic Act [35 P.S. § 780-101 et seq.] (relating to the sale and dispensing of narcotic drugs);

(iii) any conspiracy to commit any of the offenses set forth in subparagraphs (i) and (ii) of this paragraph;

* * * * * *

(3) "Enterprise" means any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity, engaged in commerce.

(4) "Pattern of racketeering activity" refers to a course of conduct requiring two or more acts of racketeering activity one of which occurred after the effective date of this section.

Appellant does not dispute the presence of a pattern of racketeering activity, but rather, argues that the Commonwealth failed to prove the existence of an "enterprise", as defined by the corrupt organizations statute, separate and apart from the drug conspiracy activity. We disagree. As we stated in Commonwealth v. Yacoubian, 339 Pa.Super. 413, 420, 489 A.2d 228, 231 (1985):

Although ... drug distributions are made criminal by other statutory provisions, the corrupt organizations section of the Crimes Code is not superfluous. This section enables law enforcement to reach the criminal enterprise which has no legitimate dimension or has yet to achieve one. To prove a violation of the corrupt organizations provision, the Commonwealth must prove more than the commission of a crime. It must also prove an enterprise. Thus, the Commonwealth was required to show in the instant case that the fencing of stolen property was the work of a group of individuals acting together, or an association, whose purpose was to engage in the commerce of selling stolen goods.

The holding in Yacoubian was recently reaffirmed by this Court in Commonwealth v. Besch, 418 Pa.Super. 1155, 614 A.2d 1155 (1992).

While recognizing the Yacoubian holding, Appellant argues that the Commonwealth cannot merely establish the enterprise necessary for the racketeering charges by proving the predicate drug conspiracy offenses, but rather, must prove the existence of an enterprise separate and apart from establishing the commission of the drug offenses. In support of his claim, Appellant relies on an unpublished memorandum opinion of a panel of this Court which affirmed, by adopting the trial court opinion, the grant of habeas corpus relief to two petitioners on the basis that, absent proof of an enterprise separate and apart from the underlying bookmaking activities, a prima facie case on corrupt organization charges was not established. Initially, we note that it is well-established, by rule and case law, that an unpublished memorandum opinion of this Court cannot be considered precedent and cannot be cited by the parties to an action for any purpose. Commonwealth v. McPherson, 368 Pa.Super. 274, 533 A.2d 1060 (1987). Moreover, as shall be discussed below, upon review of the entire record, we hold that the Commonwealth sufficiently established an enterprise beyond that necessary for the predicate drug offenses.

The trial court opinion adopted by a panel of this Court, in an unpublished memorandum opinion, found that the Commonwealth had failed to meet the test established for Racketeer Influenced and Corrupt Organizations (RICO) convictions under the federal statute. 18 U.S.C. §§ 1961-1968. Although Pennsylvania's corrupt organizations statute is based on the federal corrupt organizations statute, federal case law in this area is instructive, but not controlling. Commonwealth v. Taraschi, 327 Pa.Super. 179, 475 A.2d 744 (1984). Nevertheless, in United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981), the United States Supreme Court held that an enterprise may be established if there is (1) "evidence of an ongoing organization," (2) evidence that the various associates function as a formal or "continuing unit," and (3) evidence that the enterprise has an existence "separate and apart from the pattern of activity in which it engages." Id. at 583, 101 S.Ct. at 2528.

The third element of Turkette has subsequently been interpreted by the Third Circuit as follows:

As we understand this last requirement, it is not necessary to show that the enterprise has some function wholly unrelated to the racketeering activity, but rather that it has an existence beyond that which is necessary to commit each of the acts charged as predicate racketeering offenses. The function of overseeing and coordinating the commission of several different predicate offenses and other activities on an ongoing basis is adequate to satisfy the separate existence requirement.

United States v. Riccobene, 709 F.2d 214, 223-224 (3d Cir.1983), cert. den., sub nom. Ciancaglini v. U.S., 464 U.S. 849, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983). We find this interpretation to be wholly consistent with this Court's statement in Yacoubian, supra, that, in order to prove a corrupt organizations charge, the Commonwealth must prove an enterprise in addition to proving commission of crime.

The evidence in the present case, taken in the light most favorable to the Commonwealth, is that Appellant was in control of the distribution of methamphetamine to individuals in Clearfield County, Pennsylvania, through an organization involving various individuals including Craig Mahlon and Kevin Reilly as his immediate contacts, whether in Pennsylvania or Florida. And that through these individuals, and the use of...