Com. v. Hockenberry

• Decision Date: 31 January 1997
• Citation: 455 Pa.Super. 626,689 A.2d 283
• Parties: COMMONWEALTH of Pennsylvania v. Robert HOCKENBERRY, Appellant.
• Court: Pennsylvania Superior Court

Page 283

689 A.2d 283

455 Pa.Super. 626

COMMONWEALTH of Pennsylvania v. Robert HOCKENBERRY, Appellant.

Superior Court of Pennsylvania.

Submitted Jan. 13, 1997.

Filed Jan. 31, 1997.

Robert Hockenberry, appellant, pro se.

Mary B. Seiverling, Deputy Attorney General, Harrisburg, George R. Kepple, District Attorney, Kittaning, for Commonwealth, appellee.

Before POPOVICH, SAYLOR and HESTER, JJ.

HESTER, Judge:

Robert Hockenberry appeals from the August 22, 1996 order denying his motion to modify or correct an illegal sentence. We affirm.

Due to a presentment issued by the Seventh Statewide Investigating Grand Jury, the Pennsylvania Attorney General filed a six-count criminal complaint against appellant on August 26, 1991. Appellant was charged with corrupt organizations , conspiracy to commit corrupt organizations, possession of a controlled substance, possession of a controlled substance with intent to deliver, delivery of a controlled substance, and conspiracy. In addition, appellant's wife was charged with conspiracy. Appellant, his wife, and Louis Shaffer, another co-conspirator, proceeded to a joint trial, which lasted eight days. Nine witnesses were called by the Commonwealth. Numerous telephone interceptions were played for the jury. That evidence was well-summarized by the trial court:

In July, 1989 agents of the Attorney General's Regional Narcotics Task Force used a confidential informant, Carla Bowser, to purchase drugs from one John Emil Cravener. Investigation disclosed that Cravener's source of supply was one William Todd North. Surveillance of North led the agents to conclude that North's source of supply was one Ivan Shankle who, with his wife, Dorothy, lived in the Rural Valley area of Armstrong County.

In November, 1989 North was arrested by Kittanning police on charges of possessing cocaine and marijuana. While in custody he was visited by two agents of the Attorney General's Task Force, Fred Neal and Jeff Rood, and was asked to cooperate in their drug investigation. North agreed to do so. At the time his exclusive source of supply was Ivan Shankle.

On November 9, 1989 North made a controlled purchase of one (1) oz. of cocaine from Dorothy Shankle paying her the sum of $1400.00. A second controlled purchase took place on December 13, 1989 from Ivan Shankle. This purchase consisted of one-half (1/2) oz. of cocaine for $700.00.

North testified that when he made the second controlled buy, Hockenberry and Shaffer were both at the Shankle house and that he discussed his recent arrest with Hockenberry, (Transcript of Trial, p. 80-81).

At about this time the Attorney General's Task Force secured the long distance phone records for the Shankle residence and applied for and received authority to install a pen register on the Shankle phone. The pen register disclosed a large number of phone calls to the Hockenberry and Shaffer residences in New Bethlehem. The agents next applied to the Superior Court for authority to intercept the phone conversations on the Shankle telephone. Superior Court Judge Joseph Del Sole granted authority to intercept the phone conversations on the Shankle phone for a period of 30 days beginning on January 31, 1990. An extension of 30 days was later granted. The agents later secured permission from Judge Del Sole to intercept conversations on the Hockenberry phone as well.

By intercepting various phone conversations involving Ivan Shankle, Dorothy Shankle, Hockenberry, Shaffer and other individuals, the agents learned of an impending trip to New York by Ivan Shankle and some friends with money supplied by Hockenberry and Shaffer. The purpose of the trip was to purchase a kilogram of cocaine for $28,000. An attempt to follow Shankle to this purchase failed and the agents decided to confront Shankle and confiscate the money. This was done and Shankle turned the money over to the agents on March 7, 1990. Shankle was unaware at this time that his phone conversations were being intercepted. Shortly thereafter, Shankle gave agents Neal and Rood a statement detailing his involvement in the drug network. The agents wanted Shankle's cooperation in getting to Hockenberry. Shankle refused to further cooperate with the Commonwealth in its investigation.

In approximately March, 1991 Shankle changed his mind and agreed to cooperate. At that time he testified before an investigating grand jury sitting in Harrisburg. Plea bargains had been worked out between the Commonwealth and Ivan and Dorothy Shankle so that when the Shankles were indicted by the grand jury, they pleaded guilty and agreed to testify for the Commonwealth in the Hockenberry and Shaffer trials.

At trial Dorothy Shankle admitted helping her husband, Ivan, distribute drugs, (Transcript of Trial pp. 220, 229, 231). She indicated that Ivan received his drugs from Hockenberry and that she sometimes accompanied Ivan to Hockenberry's house in New Bethlehem either to pick up drugs or to deliver money for drugs previously purchased, (Transcript of Trial p. 215). Dorothy testified that she frequently talked to Sherry Hockenberry on the phone setting up meetings with her husband and Sherry's husband, (Transcript of Trial pp. 215, 229). Dorothy further testified that Hockenberry and Shaffer delivered drugs to the Shankle house as well, (Transcript of Trial p. 218). The money for the drugs Ivan Shankle distributed was collected by Hockenberry and Shaffer either at the Shankle residence or the Hockenberry residence, (Transcript of Trial p. 219). Dorothy explained that Ivan received his drugs on a front meaning that he sold the drugs first and paid for them later, (Transcript of Trial p. 218). She testified that the money was paid to Hockenberry or Shaffer either by Ivan or by herself on Ivan's behalf, (Transcript of Trial p. 219). Although she dealt more often with Hockenberry, Ms. Shankle indicated that sometimes Shaffer came for money by himself,(Id.). Dorothy Shankle admitted being an active drug dealer in cocaine and marijuana between April, 1989 and March, 1990 selling drugs to numerous people who were named as co-conspirators. Dorothy testified she and Ivan ceased their drug dealing activities when Ivan Shankle was confronted by Neal and Rood in March, 1990 and the $28,000 was confiscated.

Ivan Shankle became the Commonwealth's chief witness at the trial. He acknowledged the plea agreement he entered into and indicated that in February, 1989 he had had surgery and needed money. Hockenberry, whom Ivan had known most of his life, offered to front him with drugs so he could make some money, (Transcript of Trial p. 262). The arrangement began with Shankle receiving approximately one (1) oz. of cocaine to sell. It quickly escalated to the point where he was buying up to one-quarter (1/4) lb. of cocaine and five (5) lbs. of marijuana per week, (Transcript of Trial p. 266). Over the course of the year, he indicated he "moved" on the average three (3) lbs. of marijuana and two (2) to three (3) ozs. of cocaine per week with (Transcript of Trial p. 271). The drugs were given to Shankle on a front with the money being paid when the drugs were sold.

Shankle indicated that although the arrangement started between he and Hockenberry, within the first few transactions Shaffer became involved and he (Shankle) dealt thereafter with both individuals interchangeably, (Transcript of Trial pp. 271-272).

Shankle also testified he paid about $1100 or $1200 per pound of marijuana and made about $100 per pound in profit although he indicated his real money maker was cocaine. He stated he was paying $5500 for four (4) ozs. of cocaine, cut it by adding Vitamin B to make (5) ozs., and sold that for $1400 per ounce, ending up with a profit of $1500, (Transcript of Trial pp. 266-270). He indicated that he fronted his drugs to his customers in a manner similar to the manner in which Hockenberry and Shaffer fronted him.

Shankle testified that when he received the money from his drug sales, he paid either Hockenberry or Shaffer, whoever was there at the time, (Transcript of Trial p. 271). Shankle characterized his dealings as being with both Hockenberry and Shaffer. He indicated they were "like a team", (Transcript of Trial p. 272). Shankle testified that whenever he needed to obtain more drugs or had to deliver money, he drove to either Hockenberry's house or Shaffer's house [Hockenberry lived in a garage apartment at Shaffer's residence] or they would come to his house, whichever was most convenient. Although he admitted that most of his dealings were with Hockenberry, Shankle reiterated that he received cocaine and marijuana from both Hockenberry and Shaffer, and on more than one occasion paid one of the individuals for drugs which he received from the other, (Transcript of Trial pp. 272-276).

Shankle testified that during the first ten (10) months of their relationship, drugs were plentiful and always available from Hockenberry and Shaffer. Shortly after Christmas of 1989 their source of cocaine dried up and they ran out of supply. Shankle indicated that at that point both he and Hockenberry were looking for another source. He testified to discussions with Hockenberry and Shaffer concerning money to purchase from other sources, (Transcript of Trial pp. 278-279). Through one of his customers Shankle learned of a source in Ohio. In January, 1990 he made a trip to the Ohio-West Virginia border area with $10,000 of funds supplied by Hockenberry, (Transcript of Trial pp. 279-281). He purchased a couple ounces of cocaine for approximately $3200 and give the cocaine and the change to Hockenberry, (Transcript of Trial p. 282). The cocaine so obtained was not the best quality and Shankle continued to hunt for another source. He learned of a New York supply through another of his customers. Shankle obtained $10,000 from Hockenberry on March 1, 1990 at a spot near Dayton, Pennsylvania. Shaffer was present when the money was given to Shankle, (...