Com. v. Eicher

• Decision Date: 29 January 1992
• Citation: 413 Pa.Super. 235,605 A.2d 337
• Parties: COMMONWEALTH of Pennsylvania v. Jason EICHER, Appellant.
• Court: Pennsylvania Superior Court

Page 337

605 A.2d 337

413 Pa.Super. 235

COMMONWEALTH of Pennsylvania v. Jason EICHER, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 24, 1991.

Filed Jan. 29, 1992.

Kim W. Riester, Pittsburgh, for appellant.

Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before CIRILLO, FORD ELLIOTT and BROSKY, JJ.

BROSKY, Judge:

This is an appeal from the judgment of sentence entered following appellant's convictions for multiple counts of possession of marijuana and cocaine, ¹ possession of a controlled substance, i.e., cocaine, with the intent to deliver, ² delivery of a controlled substance, i.e., cocaine, ³ and possession of drug paraphernalia. ⁴ Appellant presents the following issues and subissues for our review: (1) whether appellant's rights under the Fourth, Fifth and Fourteenth Amendments of the United States Constitution and under Article I, Sections 8 and 9 of the Pennsylvania Constitution were violated in that: (a) the prosecution lacked jurisdiction and authority to conduct investigations, arrests, searches and seizures; and (b) the activities of the drug task force were extraterritorial, illegal and unlawful, and constituted prosecutorial overreaching or entrapment; (2) whether appellant's rights under the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and under Article I, Sections 9 and 10 were violated in that: (a) the Commonwealth failed to divulge the identity and whereabouts of the confidential informant who was an alleged participant in the drug transactions for which appellant was convicted; and (b) the Commonwealth failed to disclose the existence of promises of leniency to the confidential informant; (3) whether appellant's rights under the Fifth Amendment of the United States Constitution and under Article I, Section 9 of the Pennsylvania Constitution were violated by the execution of a search warrant which contained information that was obtained in violation of appellant's rights; (4) whether appellant's rights under the Fourth Amendment of the United States Constitution and under Article I, Section 8 of the Pennsylvania Constitution were violated because the search warrant failed to establish probable cause that controlled substances would be located in the premises to be searched; (5) whether appellant's rights under the Fifth Amendment of the United States Constitution and under Article I, Section 9 of the Pennsylvania Constitution were violated as appellant's sentence was based upon sentencing provisions that:

(a) violate Article III, Section 3 of the Pennsylvania Constitution; (b) are vague and fail to give notice; (c) are inconsistent with other statutory provisions and the sentencing guidelines; (d) violate due process of law; (e) violate equal protection; and (f) violate the supremacy clause; (6) whether the doctrine of merger bars multiple sentences for possession of a controlled substance with the intent to deliver and for delivery of that substance from the same source; and (7) whether appellant's rights under the Fifth, Eighth and Fourteenth Amendments of the United States Constitution and under Article I, Sections 9 and 10 of the Pennsylvania Constitution were violated because appellant's sentence was: (a) manifestly excessive; (b) unreasonable under the circumstances; (c) imposed without due regard to overwhelming mitigating factors; (d) based upon improper sentencing considerations such as assigning undue weight to the seriousness of the offense and applying improper forensic arguments, and (e) unreasonably disproportionate to other sentences imposed in the same jurisdiction. ⁵ For the reasons set forth below, we affirm the judgment of sentence.

Before addressing these issues, it is necessary to recount the relevant facts of this case. The police departments of several municipalities in the South Hills area of Pittsburgh, Pennsylvania formed a special investigative unit known as the South Hills Drug Enforcement Task Force (SHDETF). Whitehall Borough was one of the municipalities that participated in SHDETF. Prior to March 1989, Officer Butelli of the Whitehall police force arrested an individual regarding a drug-related offense. ⁶ This individual agreed to cooperate with the police and divulged information regarding appellant's narcotics activities in the Borough of Greentree, also a participant in SHDETF. Upon receipt of this tip, Officer Butelli advised the Greentree police chief, Chief Logue, of the suspected illicit drug distribution conducted by appellant, Jason Eicher. In response to this information, Chief Logue requested all municipal police departments affiliated with SHDETF to assist the Greentree police in their investigation of appellant's suspected drug-trafficking.

As a result of Chief Logue's request for assistance, Officer Butelli posed as an undercover drug purchaser and arranged for a drug purchase with appellant through the assistance of a confidential informant. The first purchase occurred at the Greenery, a discotheque located in the Greentree Holiday Inn, on April 3, 1989. At this time, the informant, appellant, and the undercover police officer met inside the Greenery where the informant introduced Officer Butelli to appellant. After talking for a period of time, appellant and Officer Butelli went outside to appellant's vehicle. While inside the vehicle, appellant sold the police officer a bag containing one-eighth ( 1/8) of an ounce or 3.4 grams of a substance that tested positive for cocaine. The informant was not present during the occurrence of this transaction.

On May 1, 1989, the informant again arranged for Officer Butelli to purchase cocaine from appellant. Appellant and the officer met in the parking lot of the Greenery, following which appellant entered the officer's vehicle and sold him two bags of cocaine. Each bag possessed one-eighth of an ounce, however, the combined amount of cocaine from both bags was found to be 6.9 grams. The informant was not present at any time during this transaction.

Following the second sale of cocaine, appellant gave his telephone number to Officer Butelli. The officer then contacted appellant and arranged for a third purchase of cocaine on May 17, 1989. Appellant had a friend drive him to the parking lot at the Parkway Center Mall, also located in the Borough of Greentree, where he met Officer Butelli. Appellant entered the officer's vehicle and sold the officer a bag containing one-quarter ( 1/4) of an ounce, or 7.1 grams, of cocaine. ⁷ Appellant also indicated to the officer that he could sell the officer one (1) ounce of cocaine because he (appellant) had that amount in his possession. The informant did not participate in and was not present at any time during the third purchase of cocaine. After exiting the officer's vehicle, appellant was arrested by a team of other police officers, including members of the Greentree police force. Appellant was searched upon his arrest and was found to possess an additional 3.5 grams of cocaine.

Following appellant's arrest, Officer Butelli obtained a search warrant for appellant's home, which was located in Robinson Township, another South Hills area municipality. Although Robinson Township is not a participant in SHDETF, the officers who were to conduct the search contacted the Robinson Township police and obtained their consent to execute the search warrant. The Robinson Township police accompanied the other police officers and participated in the search of appellant's home. A small amount of marijuana, drug paraphernalia and additional cocaine totaling 74.74 grams was discovered during the search of appellant's residence.

The above charges were instituted as a result of the controlled drug purchases and the additional drugs and drug paraphernalia seized from appellant's residence. Numerous pre-trial motions raising most of the issues now before us were filed in the trial court and were denied. A non-jury trial was thereafter held on June 29, 1990. The trial consisted of a series of stipulations as to the evidence which would be presented by the Commonwealth. No other evidence was introduced by either the Commonwealth or appellant. After the entry of the stipulations, appellant was adjudicated guilty of all offenses except for the charge of criminal conspiracy, which was nol prossed by the Commonwealth. Appellant's timely filed post-trial motions were subsequently denied by the lower court.

Appellant was sentenced on August 30, 1990 to a term of four (4) to ten (10) years' imprisonment on his conviction for possession of 74.74 grams of cocaine with the intent to deliver. In addition, appellant was sentenced to three concurrent terms of one (1) to seven (7) years' imprisonment for each of his convictions for delivery of cocaine. The sentences on appellant's delivery convictions were to be served consecutively to appellant's prior sentence for possession with the intent to deliver. Consequently, appellant received an aggregate sentence of five (5) to seventeen (17) years' imprisonment. No further penalties were imposed on appellant's remaining convictions. A timely motion for modification/reconsideration of sentence was filed, but was denied by the sentencing court. This timely appeal was then instituted.

Although appellant has alleged numerous violations of his federal and state constitutional rights, the questions which he presents essentially can be divided into the following four categories: (1) challenges to the constitutionality and authority of the municipal police departments involved in SHDETF to investigate appellant's illegal activities and perform arrests and searches/seizures related thereto; (2) demand for the disclosure of the identity and whereabouts of the confidential informant as well as any promises of leniency or favorable treatment made to the informant; (3) attack on the validity of the search warrant and allegations of error for failure to suppress evidence seized pursuant...