Com. v. Donahue

• Decision Date: 27 August 1993
• Parties: COMMONWEALTH of Pennsylvania v. Christopher Francis DONAHUE, Appellant.
• Court: Pennsylvania Superior Court

Page 1238

630 A.2d 1238

428 Pa.Super. 259

COMMONWEALTH of Pennsylvania v. Christopher Francis DONAHUE, Appellant.

Superior Court of Pennsylvania.

Submitted Feb. 22, 1993.

Filed Aug. 27, 1993.

Christopher Donahue, pro se.

Carolyn L. Darringer, Asst. Dist. Atty., Reading, for Com.

David M. McGlaughlin, Philadelphia, amicus curiae.

Before ROWLEY, President Judge, and DEL SOLE and CERCONE, JJ.

CERCONE, Judge:

This is a pro se appeal from the judgment of sentence entered in the Court of Common Pleas of Berks County, dated November 13, 1991. We vacate the judgment of sentence and remand for a new trial.

Appellant was charged with two counts each of possession of a controlled substance, ¹ possession of a controlled substance with intent to deliver, ² and corrupt organizations. ³ He was also charged with one count of criminal conspiracy ⁴ in connection with the sale of illicit drugs. The charges arose from a criminal relationship the appellant had with Erwin Bieber of Berks County. On various occasions, Bieber sold large quantities of marijuana to appellant at appellant's residence in Bucks County.

On June 19, 1990, the Pennsylvania State Police learned from Albuquerque, New Mexico police detectives that suspects in a drug ring in that city had made numerous telephone calls to two phone numbers in Berks County. Those telephone numbers belonged to Bieber. As part of the Pennsylvania investigation, the Berks County District Attorney applied with this Court for authorization to intercept communications from Bieber's telephones. Our Court granted three separate authorizations to intercept calls. As a result of the telephone interception, the police learned that Bieber was selling marijuana to the appellant herein. The police monitored Bieber and observed him travelling to Bucks County on November 7, 1990, to deliver sixteen pounds of marijuana to appellant. Appellant later wrote a check to Bieber for remuneration. A second incident occurred on November 17, 1990, when Bieber received marijuana from two cohorts he met at the Philadelphia International Airport. Bieber was later arrested, along with his cohorts, and the police seized approximately sixty pounds of marijuana. ⁵ Thereafter, police executed a search warrant for appellant's residence. Upon execution of the warrant, they found appellant in possession of twenty-five (25) grams of marijuana. He was subsequently arrested and charged with the aforementioned crimes.

Before trial, appellant filed an omnibus pretrial motion seeking, inter alia, (1) suppression of the intercepted communications pursuant to the Pennsylvania Wiretapping and Electronic Surveillance Control Act, (2) dismissal of the possession charges on grounds that the criminal complaint charged appellant of these crimes in Bucks County, outside of the jurisdiction of the Berks County Court of Common Pleas. In a plethora of orders, the trial judge denied appellant's motion to suppress the evidence and permitted the Commonwealth to amend the complaint to allege that the criminal acts of possession were committed in either Berks or Bucks County.

Trial began on October 16, 1991. After four days of testimony, a jury convicted appellant of the two counts of possession with intent to deliver, two counts of criminal conspiracy and two counts of corrupt organizations. Trial counsel filed post-verdict motions which alleged a variety of issues. Trial counsel specifically briefed twelve of these issues. The trial judge denied this motion. Appellant was then sentenced to a term of incarceration of three (3) to seven (7) years for possession with intent to deliver. He was also sentenced to concurrent terms of one (1) to seven (7) years incarceration on all other counts. This timely appeal followed.

After notice of appeal was filed, the trial judge ordered appellant to file a statement of matters complained of pursuant to Pa.R.A.P. Rule 1925(b), 42 Pa.C.S.A. Counsel for appellant filed a statement listing seventy-one issues raised on appeal. The trial judge declined to file an opinion which addressed the issues on the merits, finding instead that all the issues were waived under Rule 1925. Subsequently, counsel for appellant filed a motion to withdraw, which we granted. Accordingly, appellant is representing himself pro se and has raised the following issues for our review:

1. Did the Berks County Court of Common Pleas have jurisdiction of the substantive crimes in this case when the marijuana was possessed in Bucks County;

2. did the trial court err in not giving a corrupt and polluted source jury instruction where the witness was a co-defendant, his testimony was the only testimony linking [appellant] to sixteen (16) pounds of marijuana and the witness testified he expected very favorable treatment from the prosecutor;

3. should the contents of the intercepted wire communications and the evidence derived therefrom have been suppressed where

(1) the Final Report was not timely served upon [appellant]; Service of Inventory was never made upon [appellant], and Judge Cavanaugh did not cause to be served on [appellant] Service of Inventory;

(2) the Application for Authorization to intercept wire communications was not signed nor sworn to by the District Attorney of Berks County;

(3) [the] Commonwealth did not meet the normal investigative procedures requirement of 18 Pa.C.S.A. § 5710(a)(3);

4. was there sufficient evidence to convict [appellant] of Corrupt Organizations and conspiracy to commit Corrupt [O]rganizations;

5. was [appellant] denied due process of law, effective assistance of counsel, his right of confrontation and equal protection under the law by the actions of the Superior Court of Pennsylvania and Judge Calvin Smith;

6. was [appellant's] counsel effective?

We shall consider each of these issues. ⁶ As a preliminary matter, however, we must address the trial judge's contention that all the issues raised on appeal were waived, pursuant to Rule of Appellate Procedure 1925. That rule states in pertinent part:

(b) Direction to File Statement of Matters Complained of. The lower court forthwith may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.

Id. The Honorable Calvin Smith of the Court of Common Pleas of Berks County ordered appellant to file a concise statement of matters complained of on appeal. Counsel for appellant filed a statement listing thirty-two issues, some containing a variety of subparts. Based on the "inordinate" number of issues raised, Judge Smith held that the statement was not concise and deemed all the issues waived pursuant to Rule 1925. We do not agree with Judge Smith's analysis.

We first note that the issue of waiver based on a violation of Rule 1925(b) is expressly reserved to the appellate courts, and not to the trial courts. Id. Furthermore, with reference to the case at hand, most of the issues in the Rule 1925 statement would have been waived for failure to raise and argue these issues in post-verdict motions. It is well-established that boiler-plate allegations in post-verdict motions do not preserve issues for appellate review. Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982); Commonwealth v. Philpot, 491 Pa. 598, 421 A.2d 1046 (1980). Even if an issue is contained in a written post-trial motion, unless it is briefed or argued during post-trial proceedings, the issue is waived for purposes of appellate review. Commonwealth v. Holzer, 480 Pa. 93, 389 A.2d 101 (1978). See also Commonwealth v. Manigault, 501 Pa. 506, 462 A.2d 239 (1983) (where issues stated in post-trial motions are not briefed or argued in the lower court, issues are waived on appeal). Appellant did, however, raise and brief twelve issues in post-verdict motions, including those raised on appeal. We find that the issues raised on appeal have been preserved and we will address the merits of the issues raised despite the lack of a substantive trial court opinion. ⁷

In his first issue, appellant contends that the trial court did not have jurisdiction over the possession crimes with which he was charged, as the Commonwealth never adduced evidence that appellant possessed the marijuana in Berks County. Initially, appellant sought to quash the complaint on the grounds that he conducted no criminal activity in Berks County; but rather in Bucks County, as borne out by the complaint. The trial judge denied the motion to quash and allowed the Commonwealth to amend the complaint to aver that the substantive crimes occurred in Bucks County and/or Berks County.

Our Supreme Court has established that "the locus of a crime is always in issue, for the court has no jurisdiction of the offense unless it occurred within the county of trial, or unless by some statute, it need not...." Commonwealth v. Boyle, 516 Pa. 105, 112, 532 A.2d 306, 309 (1987). "For a county to take jurisdiction over a criminal case, some overt act involved in that crime must have occurred within that county." Id. "In order to base jurisdiction on an overt act, the act must have been essential to the crime ..." Id.

Appellant maintains that the evidence cannot show that he either actually or constructively possessed the marijuana in Berks County. The Commonwealth, in contrast, avers that the facts demonstrate that appellant could be and was convicted on the basis of accomplice liability as an accessory to Bieber's possession of marijuana in Berks County. We agree with the Commonwealth for the reasons that follow.

Accomplice liability is discussed in pertinent part in the Pennsylvania Crimes Code as follows:

§ 306. Liability for conduct of another; complicity

(a) General rule.--A person is...