Com. v. Lam

• Decision Date: 15 October 1996
• Citation: 684 A.2d 153,453 Pa.Super. 497
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Choi Chun LAM, Appellant.
• Court: Pennsylvania Superior Court

Page 153

684 A.2d 153

453 Pa.Super. 497

COMMONWEALTH of Pennsylvania, Appellee, v. Choi Chun LAM, Appellant.

Superior Court of Pennsylvania.

Argued March 28, 1996.

Filed Oct. 15, 1996.

Leonard Sosnov, Philadelphia, for appellant.

John a. Kenneff, Assistant District Attorney, Millerville, for Commonwealth, appellee.

Before CAVANAUGH, TAMILIA and MONTEMURO, ^* JJ.

MONTEMURO, Judge:

This appeal arises from the judgment of sentence entered against appellant Choi Chun Lam in the Court of Common Pleas of Lancaster County for first degree murder. Appellant was tried with two co-defendants, Zu Long Xie and Bick Yung Cheng, for the murder of Rong Rong Xu. Following her conviction by a jury, Appellant was sentenced to life imprisonment. We affirm.

On May 3, 1992, two gunmen entered a restaurant owned by Wing Cheng in Quarryville, Pennsylvania, and killed Xu, his wife. In August of 1993, Cho Yee Yeung, a member of a New York crime gang known as the Fuk Ching, was charged by federal authorities in New York with various crimes unrelated to the Quarryville murder. Pursuant to a plea agreement, Yeung revealed his involvement in the killing of Xu, admitting that he and Tang Xue Dan were hired by Appellant, the former wife of Wing Cheng, to commit the murder.

The relationship between the principals arose in early 1992 when Yeung worked as a delivery person in New York City and often made deliveries to a company owned by Chin Cheng, the son of co-defendant Bick Yung Cheng, a friend of Appellant's. Co-defendant Xie was an employee of the company, and after becoming friends with Yeung told him that Appellant was looking for a person to commit a murder. Yeung contacted Dan, who insisted that Yeung participate in the murder. The agreement reached after several meetings between Yeung, Appellant and Bick Yung Cheng was that Yeung would be paid $15,000 at the time of the murder, and another $15,000 later.

The FBI corroborated Yeung's story by having him contact Xie concerning payment of the money still owed for the murder. In April of 1994, federal undercover agents posing as members of the Fuk Ching went to the restaurant owned by Appellant in Montgomery County, Pennsylvania, and in an electronically recorded conversation, reminded her of the money promised to Yeung for the murder. That same day, telephone calls were placed from Appellant's restaurant to her co-conspirators. The next day, Xie contacted the federal agents, and during a taped conversation, agreed to pay the balance, which he did, in fact, eventually deliver.

In accordance with his plea agreement, Yeung testified for the Commonwealth. Xie and Appellant were convicted, while Bick Yung Cheng's case resulted in a hung jury. Appellant raises the following issues on appeal:

1. Were there not repeated instances of impermissible, prejudicial bolstering of the credibility of a critical Commonwealth witness in violation of Appellant's due process rights, and was not counsel ineffective for failing to object?

2. Was it not a violation of Appellant's confrontation rights and the rules against hearsay when statements of a non-testifying co-defendant were introduced even though the statements were not made in the course of or in furtherance of the alleged conspiracy?

3. Is it not clear that Appellant's statements, and the fruit of those statements, should have been suppressed because they were involuntarily made in violation of the due process clause, having been obtained by undercover police posing as violent gang members and acting in a threatening manner a. Was not suppression mandated because the statements were electronically monitored and tape recorded in violation of the Wiretapping Act, 18 Pa.C.S.A. § 5701, et seq., without the requisite approval of the county prosecutor?

4. Was it not error to introduce extensive inadmissible, prejudicial out-of-court conversations between undercover agents and the husband of the deceased which had no proper purpose, and was not counsel ineffective for failing to fully protect Appellant's rights?

5. Did not the prosecutor prejudicially and improperly comment on the good character testimony presented by Appellant, and was not counsel ineffective in failing to object?

Appellant's first contention is that her trial counsel was ineffective for not objecting to alleged improper bolstering of Yeung's credibility.

Proof of counsel's ineffectiveness requires a demonstration that the underlying claim is of arguable merit, that counsel's act or omission had no reasonable basis directed at effectuating the client's interest, and that counsel's action or omission resulted in actual prejudice. Commonwealth v. Stanley, 534 Pa. 297, 299, 632 A.2d 871, 872 (1993). Counsel cannot be held ineffective for failing to raise a meritless claim. Commonwealth v. Blount, 538 Pa. 156, 163, 647 A.2d 199, 203 (1994). If an arguable claim of ineffectiveness has been made, and an evidentiary hearing has not been held, we will remand for such a hearing. Commonwealth v. Kauffman, 405 Pa.Super. 229, 235, 592 A.2d 91, 94 (1991), allocatur denied, 529 Pa. 617, 600 A.2d 534 (1991).

Improper bolstering of a witness occurs when the Commonwealth places the prestige of the government behind the witness through personal assurances of his or her veracity, or the Commonwealth indicates that information which is not before the jury supports the witness' testimony. Commonwealth v. Hartey, 424 Pa.Super. 29, 35, 621 A.2d 1023, 1026 (1993) (citing Commonwealth v. Reed, 300 Pa.Super. 224, 230, 446 A.2d 311, 314 (1982)), allocatur denied, 540 Pa. 611, 656 A.2d 117 (1994).

Appellant's first allegation of improper bolstering is essentially two-fold: it involves both the testimony elicited by the Commonwealth on direct examination of Yeung regarding his plea agreement, and the court's reading of Yeung's plea agreement to the jury. Appellant contends that Yeung's testimony concerning his obligation to "tell the truth," and the introduction of the plea agreement, signed by the defense and by government officials, was error because its effect was to vouch for Yeung's veracity.

The language of the plea agreement required that Yeung "truthfully disclose" information, "cooperate fully" with various law enforcement agencies, "testify truthfully" concerning anything that is requested of him, and that he give "complete, truthful and accurate information and testimony...." Any "false, incomplete or misleading testimony or information," supplied by him would void the plea. The agreement also provided that Yeung would receive protection if his "truthful" cooperation led to threats against him.

The admissibility of evidence is a matter committed to the discretion of the trial court, which will not be disturbed absent an abuse of discretion. Commonwealth v. Wharton, 530 Pa. 127, 146, 607 A.2d 710, 719 (1992).

Appellant cites Commonwealth v. Bricker, 525 Pa. 362, 581 A.2d 147 (1990), in support of her argument that the testimony and the agreement provisions were inadmissible. In Bricker, the court held that the Commonwealth improperly bolstered the credibility of two witnesses by sending out with the jury, for purposes of deliberation, the plea agreements pursuant to which the witnesses testified. Id. at 380, 581 A.2d at 156. Notably, the agreements arose from their arrest on the same charges for which the defendant was being tried. Id. at 378-79, 581 A.2d at 155. The plea agreements reiterated many times the requirement that the witnesses provide "complete and truthful information," and provided that if complete information was not forthcoming, or a false statement was knowingly made under oath in connection with the agreement, the witnesses would be subject to prosecution for perjury. Id. The documents were signed by the defense and by federal and state prosecutors. Id.

The focus of the Bricker decision was the fact that the jury was actually permitted to review the plea agreement during deliberations. Relying upon Commonwealth v. Tann, 500 Pa. 593, 459 A.2d 322 (1983), the Bricker Court found that by allowing the jury to review the agreements in this way, the agreements served as "silent witnesses" because the jury is able to "read these unredacted documents at their leisure during deliberations" and, "[w]ith the agreements before them, the jurors could reasonably infer that appellant had the same opportunity as [the Commonwealth witnesses] to cooperate with the investigation ... and chose to remain silent." Id. at 378-79, 581 A.2d at 155. In addition, the court stated that the jury was persuaded to believe that the witnesses were telling the truth because the government's documents said so. Id.

In Commonwealth v. Tann, 500 Pa. 593, 459 A.2d 322 (1983), the Commonwealth intended to call two witnesses with whom they had negotiated plea bargains which provided for leniency in exchange for their testimony for the Commonwealth. Id. at 600, 459 A.2d at 326. Before the Commonwealth called the witnesses, however, it called the witnesses' lawyers to the stand to testify that their clients has been advised of their right to remain silent, but had agreed to waive their Fifth Amendment rights against self-incrimination and to testify truthfully at the defendant's trial. Id. at 601-02, 459 A.2d at 326-27. The supreme court found this testimony "eminently prejudicial" and held that this repeated reference to the witnesses' Fifth Amendment right against self-incrimination denied the defendant a fair trial. Id. at 603, 459 A.2d [453 Pa.Super. 510] at 327. The court reasoned that "the Commonwealth's use of this unwarranted tactic could only steer the jury to infer that since its witnesses ... waived their Fifth Amendment rights and willingly gave self-incriminating testimony, [their] testimony was the truth and entirely believable." Id. at 604, 459 A.2d at 327-28. The court stated that it was "entirely improper for the Commonwealth to invite such prejudicial inferences in the manner...