Com. v. Franciscus

• Decision Date: 02 April 1998
• Citation: 710 A.2d 1112,551 Pa. 376
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Chad FRANCISCUS, Appellant.
• Court: Pennsylvania Supreme Court

Page 1112

710 A.2d 1112

551 Pa. 376

COMMONWEALTH of Pennsylvania, Appellee v. Chad FRANCISCUS, Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 16, 1996.

Decided April 2, 1998.

[551 Pa. 378] Vincent P. DiFabio, Paoli, for Chad Franciscus.

Stuart Suss, West Chester, Nicholas J. Casenta, Jr., for the Commonwealth.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

OPINION

ZAPPALA, Justice.

We granted allocatur in this case to address the issue of whether Chad Franciscus's right to assistance of counsel under the Sixth Amendment of the United States Constitution and under Article I, Section 9 of the Pennsylvania Constitution was violated by the admission at trial of incriminating statements made by him to a jailhouse informant. For the following reasons, we find that the admission of the statements violated Franciscus's right to assistance of counsel guaranteed by the federal and state constitutions and that a new trial is required.

On September 30, 1991, Michael Devine left his house to go to high school. Devine decided to skip school with some friends. Later that evening, Devine went to a convenience store to purchase cigarettes and did not return.

On October 15, 1991, the Parkesburg Police Department received an anonymous letter indicating the location of a body and naming Franciscus as the killer. The Parkesburg Police contacted the Pennsylvania State Police at the Embreeville barracks to conduct a search for the body. The body was identified as Devine's. A broken pair of eyeglasses was found at the scene.

The letter to the police was written by a friend of Franciscus, Reuben Armstrong. Armstrong was interviewed later by Pennsylvania State Troopers Joseph Joy and Laurie Dougherty. Armstrong told them that Franciscus had described to him how he had murdered someone and that Franciscus had shown him where the body was located.

Based upon this information, Franciscus was arrested and charged with the murder. At the time of his arrest, Franciscus was seventeen years old. He was imprisoned at the Chester County prison in maximum security pending his trial. During that time, prison officials transferred an inmate from the general population to maximum security and placed the inmate near Franciscus's cell. The inmate, Daniel Krushinski, befriended Franciscus and spoke with him extensively about the murder charge. Krushinski then disclosed the information to the State Troopers who were responsible for the investigation.

A pre-trial motion was filed by defense counsel seeking to suppress Krushinski's testimony regarding oral and written statements made by Franciscus. The motion asserted that Franciscus's rights under the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution had been violated. The evidentiary hearing held by the trial court disclosed the following.

On January 23, 1992, Krushinski was transferred to the Chester County prison as an accommodation to Lancaster County. Only seven days after his arrival, Krushinski contacted Detective Corporal Jay Hess of the East Whiteland Police Department to discuss information regarding an armed robbery investigation that Detective Hess was involved in. Krushinski's attorney contacted Hess first to explain that his client wished to speak to him about the armed robbery; Krushinski's phone call then followed.

Krushinski informed Detective Hess that he had information that would help him in prosecuting the case. A meeting between Krushinski and Detective Hess was arranged for the next day. The meeting took place as scheduled. Also present at the meeting was Pennsylvania State Police Trooper Jim Boyd of the Embreeville barracks. Trooper Boyd had also been contacted by Krushinski's attorney on January 30, 1992.

Anticipating that his efforts would prove beneficial to him, Krushinski provided information about an inmate of the Chester County prison named Verbiski, who had been charged with armed robbery. Krushinski informed the troopers that Verbiski wished to have certain witnesses intimidated or harmed and apprised them of Verbiski's effort to escape from the prison. Based upon this information, Trooper Boyd decided to follow up on Verbiski's plan to intimidate witnesses. Trooper Boyd developed a plan for an undercover detective to be "hired" by Verbiski for that purpose and to record conversations with Verbiski. As a result, Verbiski was eventually charged with harassment and intimidation of witnesses.

On February 5, 1992, Joseph Carroll, Esquire (First Assistant District Attorney of Chester County) met with Krushinski, Detective Hess, Trooper Boyd, and Chester County detectives. Krushinski was awaiting sentencing by the Lancaster County Court of Common Pleas. An agreement was entered into at the meeting that the law enforcement officials would be available to testify upon request that Krushinski had provided information to them in the Verbiski prosecution. It was understood that the law enforcement officials would appear to testify at the Lancaster County sentencing proceeding, but the agreement was not limited to that proceeding. The agreement was approved by the district attorney's office.

The agreement to testify on Krushinski's behalf was not the only benefit that arose from Krushinski's efforts. Detective Hess and Trooper Boyd deposited $45.00 into Krushinski's prison account after Krushinski came to them with his information. Krushinski had told other inmates, including Verbiski, that he had connections on the outside. Krushinski felt that he could not keep up his facade if he did not have any money in his prison account. The officers agreed to supply him with the money for this purpose.

During this time, Detective Hess had several conversations with Lieutenant Edward Zunino of the Kennett Square Police Department relating to Krushinski. Krushinski had contacted Lieutenant Zunino and had offered to provide him with information in a separate case involving another Chester County prison inmate named Hamm. Krushinski indicated that he had obtained Lieutenant Zunino's name from Detective Hess. After Krushinski had given him information that was helpful to one of his investigations, Lieutenant Zunino agreed to testify about his cooperation when requested. He was aware that Krushinski was to be sentenced by the Lancaster County Court of Common Pleas.

The information that Krushinski provided to Lieutenant Zunino led to the arrest of another individual other than Hamm on February 14, 1992. The arrest warrant indicated that Krushinski had supplied information as to the charges. When this information became known in the Chester County prison, Krushinski was confronted by inmates and assaulted. Krushinski called to inform Lieutenant Zunino of these events and told him that he wanted to be removed from the Chester County prison. Lieutenant Zunino contacted the captain of security at the prison, Donald Dougherty, and asked him to remove Krushinski from the cell block where he was being housed for safety reasons. He then went to meet Krushinski at the prison. At the time they met, Krushinski had not been moved within the prison. Captain Dougherty was asked to transfer Krushinski and to initiate the necessary procedure. Krushinski was transferred that same day to the maximum security cell block.

Lieutenant Zunino gave Krushinski his home phone number. After his transfer, Krushinski called Lieutenant Zunino no less than twenty times. Krushinski did not want to remain in maximum security, but wanted to be transferred out of the Chester County prison. Krushinski also informed Lieutenant Zunino that he was working with the Pennsylvania State Police in Embreeville on a murder case. Lieutenant Zunino was unsure when that conversation occurred, but indicated that Krushinski was still in the Chester County prison at the time.

The section of maximum security that Krushinski was transferred to contained fourteen cells, including that of Franciscus. Franciscus's cell was separated from Krushinski's cell by one other cell. Krushinski immediately engaged Franciscus in conversations about the homicide charges and offered his assistance based upon his supposed connections outside of the prison.

On February 19, 1992, five days after his transfer to maximum security, Krushinski requested that his attorney contact Trooper Laurie Dougherty at the Embreeville State Police barracks. Trooper Dougherty was aware of Krushinski's involvement in the Verbiski case and his dealings with Trooper Boyd when she received this call. The attorney informed her that Krushinski had been trying to contact her to supply her with information about a homicide case that she was investigating, but that the desk had not accepted the collect phone calls. The attorney asked that she accept a phone call from Krushinski that she should expect immediately. Trooper Dougherty agreed and the call which briefly followed was accepted.

Krushinski asked if she was interested in information pertaining to Franciscus. Trooper Dougherty inquired as to what information he could supply. Krushinski indicated that Franciscus had admitted that he had killed Michael Devine and had provided specific details about the murder weapon and clothing that he had worn. Krushinski also stated that Franciscus had supplied him with a list of names of witnesses who would testify in his defense. Trooper Dougherty informed him that she would arrange a meeting with the District Attorney who was prosecuting the case, Robert Miller, Esquire.

Arrangements were made that day to bring Krushinski into the District Attorney's office for an interview. A court reporter was brought into the office to record a statement that was taken from Krushinski at that time. The next day, Krushinski was transferred out of the Chester County prison. Thus, in a span of only twenty-eight days, Krushinski had secured information that was used by the State...