Com. v. GARZONE

• Decision Date: 13 April 2010
• Docket Number: No. 695 EDA 2009.,695 EDA 2009.
• Citation: 993 A.2d 306
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Gerald GARZONE, Appellant.
• Court: Pennsylvania Superior Court

993 A.2d 306

COMMONWEALTH of Pennsylvania, Appellee v. Gerald GARZONE, Appellant.

No. 695 EDA 2009.

Superior Court of Pennsylvania.

Argued January 26, 2010.

Filed April 13, 2010.

John Morris, Philadelphia, for appellant.

Mariana Sorensen, Assistant District Attorney, and Hugh J. Burns, Jr., Assistant District Attorney, for Commonwealth, appellee.

BEFORE: STEVENS, MUNDY, JJ., and McEWEN, P.J.E.

OPINION BY STEVENS, J.:

¶ 1 This is an appeal from the judgment of sentence entered on January 30, 2009 in the Court of Common Pleas of Philadelphia County following Appellant Gerald Garzone's guilty plea to numerous charges, including corrupt organizations, criminal conspiracy, 244 counts of theft by unlawful taking (for theft of body parts), abuse of corpse, recklessly endangering another person, and fraudulently obtaining food stamps or other public assistance¹ in connection with his participation in the illegal harvesting and sale of human body parts from corpses, as well as filing false forms seeking reimbursement from the government for providing funeral services for which he had already been paid. As part of Appellant's sentence, upon the filing of a timely post-sentence motion by the Commonwealth, the trial court directed Appellant to pay $90,028, which was comprised of $84,723 for the salaries of the assistant district attorneys and county detectives assigned to the District Attorney's Office, as well as $5,305 for the grand jury costs. On appeal, Appellant contends the trial court did not have the authority to order Appellant to pay the expenses associated with the district attorneys' salaries, the county detectives' salaries, or the grand jury costs. We vacate Appellant's judgment of sentence as it relates to the costs for the assistant district attorneys' and county detectives' salaries but affirm in all other respects.

¶ 2 The relevant factual history has been aptly set forth by the trial court as follows:

Appellants Louis and Gerald Garzone² were licensed funeral home directors who operated separate funeral homes in Philadelphia. N.T. 9/2/08 at 24. Appellants were also co-owners of Liberty Crematorium in Philadelphia with co-defendant James McCafferty. N.T. 9/2/08 at 24. In early 2004, Appellants and Mr. McCafferty were approached by co-defendant Michael Mastromarino,³ the founder and president of a business called Biomedical Tissue Services ("BTS") that sold human tissue harvested from cadavers to tissue banks. N.T. 9/2/08 at 24-26. Mr. Mastromarino had initially partnered with funeral home directors in New York and New Jersey. N.T. 9/2/08 at 26. These funeral home directors provided Mr. Mastromarino with cadavers from which he and his team of "cutters" could harvest tissue without the consent of the deceased or their next of kin and then sell to tissue banks. N.T. 9/2/08 at 25-26. However, this arrangement required Mr. Mastromarino and his cutters to reconstruct the cadavers with PVC pipe after harvesting to conceal their activity and prepare the bodies for viewing and burial. N.T. 9/2/08 at 26. Therefore, Mr. Mastromarino approached Appellants and Mr. McCafferty, who as owners of a crematorium, had access to cadavers destined for cremation and could provide these cadavers without concern for their post-harvesting condition. N.T. 9/2/08 at 24-27.

Appellants and McCafferty agreed to provide bodies that had been entrusted to their funeral homes and crematorium for cremation to Mr. Mastromarino, who would then harvest bones and tissue from the cadavers to sell to tissue banks. N.T. 9/2/08 at 24-25. In exchange, Mr. Mastromarino agreed to pay Appellants $1,000 for each cadaver. N.T. 9/2/08 at 28. When Mr. Mastromarino and his cutters came to Philadelphia, Appellants would direct them to the bodies in the embalming rooms of their funeral homes. N.T. 9/2/08 at 29-30. There, Mr. Mastromarino and the cutters would remove the cadavers' arms, legs, bones, ligaments, tendons, and skin, often leaving only a head and a bloody torso behind in a bag for cremation. N.T. 9/2/08 at 28-29.

Between visits from Mr. Mastromarino and his cutters, cadavers destined for harvesting would sit in an alley, unrefrigerated, for days. N.T. 9/2/08 at 29, 32-33. Appellants never provided Mr. Mastromarino or his cutters with death certificates, identification, consent forms, or the names of the bodies' next of kin. N.T. 9/2/08 at 30-33. Although Mr. Mastromarino told Appellants that the tissue was destined for medical use and the cadavers had to be of individuals who were less than seventy-five years old and disease-free when they died, Appellants provided cadavers of individuals who were more than eighty years old and sick with cancer, H.I.V., and hepatitis at the time of their passing. N.T. 9/2/08 at 27, 31, 34. Over the course of their arrangement with Mr. Mastromarino, Appellants provided more than 244 cadavers and received more than $245,000 in return. N.T. 9/2/08 at 27-28.

In September 2005, Mr. Mastromarino learned that the FDA was investigating his activities and instructed Appellants to burn their funeral homes to the ground to destroy the evidence of their enterprises. N.T. 9/2/08 at 34. Instead, Appellants incinerated their records in the crematory oven mere days before the arrival of FDA investigators, and told the investigators that their records had been destroyed by a flood. N.T. 9/2/08 at 34-35.

In addition to providing bodies to Mr. Mastromarino, Appellants pursued other criminal activity. N.T. 9/2/08 at 35-41. Appellants defrauded the Pennsylvania Department of Public Welfare ("PDPW") by filing false forms seeking reimbursement for providing funeral services to the indigent when they actually already had been compensated for those services by their clients. N.T. 9/2/08 at 35-37. For each false claim, Gerald and Louis sought the maximum amount of $750 and overall received $51,750 and $25,250, respectively. N.T. 9/2/08 at 35-37.

Trial Court Opinion filed 6/1/09 at 2-4 (footnote omitted) (footnotes added).

¶ 3 The Commonwealth submitted this case to the Grand Jury in May of 2006, and after the Grand Jury recommended multiple charges be filed against Appellant Gerald Garzone, he was arrested. Trial was scheduled for September 2, 2008, and represented by counsel, Appellant informed the Commonwealth that he intended to proceed to trial with Co-Defendant Louis Garzone, despite the fact Lee Cruceta, who led the "cutters," Mr. Mastromarino, and Mr. McCafferty had advised the Commonwealth they intended to plead guilty and cooperate with the Commonwealth. Thus, the Commonwealth prepared its numerous witnesses for trial, with an estimated trial length of three months. See Trial Court Opinion filed 6/1/09 at 6 n. 5.

¶ 4 However, on September 2, 2008, Appellant pleaded guilty to the charges indicated supra. With regard to the terms of Appellant's guilty plea, the following relevant exchange occurred:

THE COURT: With regard to you, Mr. Gerald Garzone, I understand that you also have an agreement with the Commonwealth. Pursuant to your agreement the Commonwealth will agree to drop and move to nolle prosse, which is to say they will drop, all the remaining charges against you.

In addition, there is an agreement that the aggregate amount of restitution would be $144,000 dollars.

There is also no agreement as to sentence. The Commonwealth would be free to recommend any sentence that it deems to be appropriate.

Is that your understanding of the agreement, sir?

APPELLANT GERALD GARZONE: Yes, sir.

N.T. 9/2/08 at 44-45 (bold in original).

¶ 5 On October 22, 2009, Appellant proceeded to a sentencing hearing, at the conclusion of which the trial court sentenced Appellant to an aggregate of eight years to twenty years in prison. N.T. 10/22/09 at 276. The trial court noted that "restitution will be ordered in the amount agreed upon." N.T. 10/22/09 at 276. During the sentencing hearing, the Commonwealth requested that the trial court "consider requiring the defendants to pay cost of prosecution or a portion thereof ... as the Commonwealth did have to prepare for trial." N.T. 10/22/09 at 272. The trial court indicated that it "had been doing this for 27 years. I never saw anybody ask for cost of prosecution on guilty plea." N.T. 10/22/09 at 273. The trial court specifically denied the request. N.T. 10/22/09 at 273.

¶ 6 On October 31, 2008, the Commonwealth filed a "Motion to Reconsider Expenses Incurred by District Attorney," claiming total costs for Appellant and Co-Defendant Louis Garzone in the amount of $17,844. By order entered on December 2, 2008, the trial court granted the Commonwealth's motion to reconsider expenses and ordered the Commonwealth to prepare a list of costs. On December 18, 2008, the Commonwealth filed a "Motion to Amend Its Motion To Reconsider Expenses Incurred By District Attorney," claiming expenses for the assistant district attorneys' salaries, the county detectives' salaries, and the grand jury totaling $373,183 for Appellant and Co-Defendant Louis Garzone.

¶ 7 On January 14, 2009, Co-Defendant Louis Garzone filed a counseled motion seeking a modification of sentence in accordance with the Recidivism Risk Reduction Incentive (RRRI) program,⁴ and Appellant joined in the motion. On January 22 and 29, 2009, the matter proceeded to hearings, at which the trial court heard argument as to whether Appellant was eligible for an RRRI sentence, as well as the total amount Appellant should pay in expenses for the district attorneys' salaries, the county detectives' salaries, and the grand jury costs. During the January 29, 2009 hearing, the following relevant exchanged occurred regarding the imposition of the expenses:

THE COURT: So it seems to me, having granted the Commonwealth's motion and not inclined to change that decision, what I have to do then is to award, according to what the cases tell me, what costs were reasonably necessary for the prosecution and not within the ambit of usual services

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