Com. v. Melson

• Decision Date: 18 April 1989
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. William MELSON.
• Court: Pennsylvania Superior Court

Page 836

556 A.2d 836

383 Pa.Super. 139

COMMONWEALTH of Pennsylvania, Appellant v. William MELSON.

Superior Court of Pennsylvania.

Argued Dec. 8, 1987.

Filed Feb. 9, 1989.

Reargument Denied April 18, 1989.

[383 Pa.Super. 142] Lawrence M. Cherba, Asst. Dist. Atty., Doylestown, for Com.

Douglas C. Maloney, Langhorne, for appellee.

Before WIEAND, KELLY and HESTER, JJ.

HESTER, Judge:

The Commonwealth appeals an order entered on June 16, 1987, wherein appellee, William "Country" Melson, was granted a new trial following a jury's finding that he was guilty of first degree murder. The trial court issued the order for Melson's new trial based upon post-trial motions which alleged that prior counsel was ineffective in failing to move to suppress identification testimony obtained through questionable use of a subpoena and an impermissibly suggestive identification. We affirm.

The facts found by the trial court are as follows. Melson was arrested on August 24, 1984, by Bucks County detectives and charged with conspiracy, robbery and murder in connection with the death of Robert Malarchik. The arrest followed Melson's appearance at the Bucks County Courthouse pursuant to a subpoena. The subpoena had been issued to compel Melson to appear and testify at the sentencing hearing of Eugene Banks, who had already been convicted of Malarchik's murder. The police had suspected that Melson was a co-conspirator, but did not have sufficient evidence to arrest him. They subpoenaed him for Banks' sentencing, hoping to gain additional evidence upon which to base such an arrest. The prosecutor did not expect to have Melson testify at Banks' sentencing.

Melson was aware that he was a prime suspect since he had been interviewed four days prior to the sentencing hearing. He had refused to answer questions without first consulting an attorney and had attempted to obtain advice from Banks' counsel before he appeared at the courthouse for the sentencing. He was not successful in reaching Banks' attorney. Melson went to the courthouse, but decided to leave shortly after he arrived. Detectives advised him that he could not leave. No one at the courthouse questioned Melson about his willingness to testify or discussed the substance of any proposed testimony.

After the sentencing proceeding began, two detectives ordered Melson into the courtroom. They escorted Melson into the courtroom with a detective on each side. At least one of the detectives held him by the arm. He was seated prominently in the front of the courtroom. One of the detectives was publicly known to have been involved in the investigation of the Malarchik murder. Shortly after Melson appeared in the courtroom, the deputy assistant district attorney gestured toward Banks, and Banks nodded his head. At that point, Melson was advised that he was being placed under arrest, and he was escorted out of the courtroom in the same manner as he had been brought in.

Banks' sentencing was then delayed since he decided to testify on behalf of the Commonwealth against Melson. Banks named Melson as a co-conspirator and participant in Malarchik's murder. Banks' plea agreement provided that his sentences would run concurrently, that he would remain in Bucks County prison rather than a state correctional institution until sentencing, and that a favorable letter would be written to the parole board by the district attorney's office.

The events surrounding the murder are as follows. Banks had been a partner with Malarchik in a swingers sex club known as "The Woodlands" in Bucks County, Pennsylvania. Banks suspected that Malarchik was under-reporting the number of patrons and, thus, retaining more than his share of the profits. Banks asked his then-girlfriend, Frances Markowitz, to count the automobiles in the parking lot on several weekend nights. The count of automobiles confirmed Banks' suspicions. Banks originally intended only to rough-up Malarchik. He contacted Melson and another unnamed co-conspirator to assist him, and agreed to provide them with methamphetamine, as he had in the past, in return for their help.

Melson and Banks met in the club parking lot on the night of July 10, 1982. Fran Markowitz was with Banks and saw Melson briefly. She remembered that he drove a white Lincoln Continental and that he visited the club briefly in order to identify Malarchik.

Later, the conspirators agreed to poison Malarchik by using cyanide in the hope that his death would appear to have been caused by a heart attack. Banks provided his accomplices with cyanide, a syringe, handcuffs and an unregistered gun. Malarchik resisted, the syringe with the cyanide was broken, and Malarchik instead was shot, strangled, and finally drowned by immersion in a tub. Fran Markowitz assisted Banks in disposing of Malarchik's body.

When police discovered Malarchik's body, Banks was arrested, and he was convicted partially on the basis of Fran Markowitz's testimony. Although the police were aware that there were co-conspirators, and that one of them drove a white Lincoln Continental and was called "Country," Markowitz was unable to identify Melson from a photographic array. Furthermore, Banks refused to identify his co-conspirators until he observed Melson in the courtroom at his sentencing hearing. Markowitz also attended the sentencing, but did not identify Melson at that time. She did identify him three days later after his picture appeared on the front pages of the local newspaper following his arrest. She later testified for the Commonwealth at Melson's trial and stated she had not seen Melson's picture in the newspaper.

At issue is trial counsel's failure to seek suppression of Markowitz's in-court identification and testimony. The burden of establishing ineffective assistance of counsel rests on the defendant, as counsel is presumed to be effective. Commonwealth v. McNeil, 506 Pa. 607, 487 A.2d 802 (1985). In order to prevail, defendant has the burden of establishing that: 1) counsel was arguably ineffective due to an act or omission; 2) the challenged act or omission could not objectively have furthered defendant's interests; and 3) defendant was prejudiced in that, but for the challenged act or omission, there was a reasonable probability the outcome of the trial would have been more favorable. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Upon careful review of the record, the parties' briefs and the trial court opinion, we find that the trial court properly granted Melson a new trial on the grounds that the identification by Markowitz should have been suppressed and that trial counsel had no reasonable basis for failing to pursue the suppression issue. ¹ The trial court found Melson's claim meritorious in that: 1) the subpoena which compelled Melson's presence at the sentencing was a sham and the identification by Markowitz, which resulted from his appearance, must be suppressed as tainted fruit; 2) Melson was under arrest when he was not allowed to leave the courthouse and had the right to counsel at that point; and 3) the view by Markowitz at the sentencing was unduly suggestive, she did not have an independent recollection from which to identify Melson as a co-conspirator prior to his sentencing appearance, and the view at the sentencing contributed to her identification of Melson as a co-conspirator. We agree with all three positions.

Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483, 484-85 (1987). Where the challenge is to a failure to move for suppression of evidence, the defendant must establish that there was no reasonable basis for not pursuing the suppression claim and that if the evidence had been suppressed, there is a reasonable probability the verdict would have been more favorable. Kitrell v. Dakota, 373 Pa.Super. 66, 72-73, 540 A.2d 301, 306, (1988).

Initially, we will discuss the invalid use of the subpoena which compelled Melson's attendance at Banks' sentencing. It was not intended to produce his testimony at the sentencing, but was designed to induce either Melson or Banks to cooperate with the Commonwealth after they observed each other. The prosecutor admitted as much. Thus, the Commonwealth's primary goal was to use a confrontation to gain evidence in a criminal investigation. Furthermore, at the time, Melson was a prime suspect in the investigation. He had been interviewed four days earlier and had refused to testify at the sentencing without first consulting his attorney. He had not yet consulted the attorney when he was compelled to appear at the courthouse and subsequently was led into the courtroom by detectives. The dominant purpose of the subpoena was to engineer a confrontation between Commonwealth witnesses and suspects in order to gain either additional evidence or the identification of a co-conspirator, in this case, Melson. The subpoena achieved this purpose.

The use of the subpoena for this purpose is impermissible. A writ "is for the purpose of compelling the attendance of a person whom it is desired to use as a witness.... A writ which does not cause a witness to appear and give testimony, and place the witness under the order and censure of the court is not a subpoena." 97 C.J.S. Witnesses § 20 (1957) (footnotes omitted) (emphasis added); see also Commonwealth v. Wilson, 158 Pa.Super. 198, 202, 44 A.2d 520, 522 (1945).

This invalid use of the subpoena eventually resulted in Markowitz's identification of Melson as a co-conspirator. Further, her identification would not have occurred without this engineered confrontation since she previously had been unable to identify him through a photographic array which contained his picture. Since her identification was the fruit of the impermissible use of the subpoena and since she had no independent basis to identify Melson, her courtroom identification should have been suppressed. Trial counsel had no reasonable basis in failing to seek suppression of the identification.

We...